United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 22, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-50418
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ANTONIO CONTRERAS-TERRAZAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
(No. 3:04-CR-165-ALL-KC)
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Before JONES, Chief Judge, JOLLY and WIENER, Circuit Judges.
PER CURIAM:*
This matter is before us on remand from the United States
Supreme Court for reconsideration in light of its recent opinion in
United States v. Booker.1 At our request, Defendant-Appellant Jose
Antonio Contreras-Terrazas has submitted a supplemental letter
brief addressing the impact of Booker. The government has
submitted a motion to reinstate our prior affirmance of his
conviction and sentence, which Contreras-Terrazas opposes. For the
following reasons, we find that Booker does not affect Contreras-
Terrazas’s sentence.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
543 U.S. ——, 125 S. Ct. 738 (2005).
I. BACKGROUND
Contreras-Terrazas pleaded guilty to reentering the United
States unlawfully following deportation, in violation of 8 U.S.C.
§ 1326(a). The district court increased Contreras-Terrazas’s
offense level under the Guidelines because he had a prior
aggravated felony conviction, and the court ultimately sentenced
him to 50 months imprisonment. Contreras-Terrazas appealed his
conviction challenging the constitutionality of the statute under
which he was convicted. We affirmed in an unpublished opinion.2
Contreras-Terrazas then obtained Supreme Court review on both his
conviction and the constitutionality of his sentence under Booker.
As noted above, the Supreme Court remanded to us for
reconsideration in light of Booker.
II. DISCUSSION
A. Standard of Review
Contreras-Terrazas raised his Booker claim for the first time
in his petition for certiorari. Therefore, we will not review his
Booker claim absent “extraordinary circumstances.”3 The
extraordinary circumstances standard is more demanding than the
plain error review that we employ when a defendant has raised his
Booker claim for the first time on appeal.4 Therefore, if a
2
U.S. v. Contreras-Terrazas, No. 04-50418, 110 Fed. Appx 450
(5th Cir. Oct. 21, 2004).
3
U.S. v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).
4
Id.
2
defendant cannot satisfy plain error review, he certainly cannot
satisfy extraordinary circumstances review.5 Contreras-Terrazas
argues that the extraordinary circumstances review is inapplicable
in this case for a variety of reasons. As his claim does not
survive plain error review, we need not address his objections to
the extraordinary circumstances standard.
Under plain error review, we will not remand for resentencing
unless there is “(1) error, (2) that is plain, and (3) that affects
substantial rights.”6 If the circumstances meet all three
criteria, we may exercise our discretion to notice the error, but
only if it “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.”7 Since Booker, sentencing
under mandatory Guidelines constitutes (1) error, and that error is
(2) plain.8 Whether the error affects substantial rights is a more
complex inquiry in which the defendant bears the burden of proof,
and he carries his burden if he can “demonstrate a probability
‘sufficient to undermine confidence in the outcome.’”9 The
defendant demonstrates such a probability when he identifies from
the record an indication that the sentencing judge would have
5
Id.
6
U.S. v. Cotton, 535 U.S. 625, 631 (2002).
7
Id.
8
U.S. v. Mares, 402 F.3d 511, 521 (5th Cir. 2005).
9
Id. (quoting U.S. v. Dominguez Benitez, 542 U.S. 74 (2004)).
3
reached a significantly different result under an advisory
Guidelines scheme.10
B. Merits
In his supplemental letter brief, Contreras-Terrazas concedes
that he cannot carry his burden under the third prong of the plain
error test. Specifically, Contreras-Terrazas is unable to point to
any indication in the record that there is a probability that the
sentencing judge would have sentenced him differently under an
advisory Guidelines scheme. Instead, he urges us to abandon the
standard of review we adopted in Mares and instead apply the plain
error standard employed by, inter alia, the Fourth Circuit. Mares,
however, is the settled law of this circuit, and we can revisit it
only en banc or following a Supreme Court decision that effectively
overturns it. Accordingly, we affirm the sentence imposed below.
III. CONCLUSION
As there exist no extraordinary circumstances or other grounds
for relief, Contreras-Terrazas’s sentence is AFFIRMED. The
government’s motion to reinstate our prior affirmance is DENIED as
moot.
10
Id. at 522.
4