United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 21, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-50454
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID SANCHEZ-MORALES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
(No. 3:03-CR-1951-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
David Sanchez-Morales has submitted a supplemental letter brief
addressing the impact of Booker. The government has submitted a
motion to reinstate our prior affirmance of Sanchez-Morales’s
conviction and sentence, which Sanchez-Morales opposes.
*
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this opinion should not be published and is not precedent except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
Sanchez-Morales pleaded guilty to reentering the United States
unlawfully following deportation, in violation of 8 U.S.C. § 1326.
According to Sanchez-Morales, he returned to the United States to
look for work. He has a wife, six children, and an elderly mother.
After he was arrested for illegal reentry, Sanchez-Morales alleges
that he suffered a significant physical injury.
The district court increased Sanchez-Morales’s offense level
under the Guidelines because he had a prior felony drug conviction,
and the court ultimately sentenced him to 60 months imprisonment ——
three months above the bottom of the applicable Guidelines range.
Sanchez-Morales appealed his sentence, and we affirmed in an
unpublished opinion.2 Sanchez-Morales then obtained Supreme Court
review on the issues he raised on appeal and on 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
Sanchez-Morales 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
2
U.S. v. Sanchez-Morales, No. 04-50454, 111 Fed. Appx 316 (5th
Cir. Oct. 21, 2004).
3
U.S. v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).
2
plain error review that we employ when a defendant has raised his
Booker claim for the first time on appeal.4 Therefore, if a
defendant cannot satisfy plain error review, he certainly cannot
satisfy extraordinary circumstances review.5 Sanchez-Morales
argues that the extraordinary circumstances review is inapplicable
to his case for a variety of reasons. As his claim does not
survive the less stringent 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 error, and that error is
plain.8 Whether the error affects substantial rights is a more
complex inquiry in which the defendant bears the burden of proof.
He carries his burden only if he can “demonstrate a probability
‘sufficient to undermine confidence in the outcome.’”9 The
defendant demonstrates such a probability when he identifies from
4
Id.
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
the record an indication that the sentencing judge would have
reached a significantly different result under an advisory
Guidelines scheme.10
B. Merits
Sanchez-Morales notes that the Guidelines discourage the
consideration of family factors and physical condition as grounds
for departure. This is relevant because Sanchez-Morales contends
that he presented sympathetic family circumstances and physical
condition at sentencing. Thus, Sanchez-Morales insists that a
sentencing judge would likely sentence him differently under an
advisory Guidelines scheme because of his special circumstances.
At the outset, as Sanchez-Morales concedes, there is no
indication in the record that the district court would have
sentenced Sanchez-Morales differently. Moreover, even though the
Guidelines state that “family ties and responsibilities are not
ordinarily relevant in determining whether a departure may be
warranted,” the commentary to that section specifically provides
that the sentencing court may take a family’s loss of financial
support into account in deciding to depart downward.11 Likewise,
although physical condition is not “ordinarily” relevant in the
sentencing determination under the Guidelines, that section
explicitly provides that “extraordinary physical impairment may be
a reason to depart downward.”12 Furthermore, sentencing courts
10
Id. at 522.
11
U.S.S.G. § 5H1.2.
12
Id. at § 5H1.4.
4
still must consider the Guidelines, even though they are no longer
mandatory.13 Ultimately, Sanchez-Morales’s argument that a
sentencing court would have sentenced him differently under an
advisory Guidelines scheme is unpersuasive. Accordingly, Sanchez-
Morales fails to carry his burden under the third prong of the
plain error test. Concomitantly, Sanchez-Morales fails to
demonstrate that extraordinary circumstances entitle him to
resentencing.
In the alternative, Sanchez-Morales 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 may revisit it
only en banc or following a Supreme Court decision that effectively
overturns it. Accordingly, we affirm the sentence as imposed.
III. CONCLUSION
As there exist no extraordinary circumstances or other grounds
for relief, Sanchez-Morales’s sentence is AFFIRMED. The
government’s motion to reinstate our prior affirmance is DENIED as
moot.
13
Mares, 402 F.3d at 518-19.
5