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. 04-50475
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NICOLAS MARRUFO-GUTIERREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
(3:04-CR-202-ALL-DB)
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ON REMAND FROM THE UNITED STATES SUPREME COURT
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
Nicolas Marrufo-Gutierrez has submitted a supplemental letter brief
addressing the impact of Booker, to which the Government has
responded with a motion to reinstate our prior affirmance of his
conviction and sentence. Marrufo-Gutierrez opposes the
*
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this opinion should not be published and is not precedent except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).
Government’s motion. For the following reasons, we find that
Booker does not affect Marrufo-Gutierrez’s sentence.
I. BACKGROUND
Marrufo-Gutierrez pled guilty to and was convicted of being in
the United States unlawfully following deportation, in violation of
8 U.S.C. § 1326. This offense carries a maximum penalty of two
years’ imprisonment and one year of supervised release. Marrufo-
Gutierrez had a prior conviction for illegal reentry, which under
§ 1326(b)(1) triggered an increase in the statutory maximum term of
imprisonment and supervised release. It also resulted in a four-
level enhancement to the Guidelines offense level, which, combined
with Marrufo-Gutierrez’s criminal history score, produced a
Guidelines sentencing range of 21 to 27 months. The district court
imposed a sentence of 27 months’ imprisonment to be followed by
three years’ supervised release. Marrufo-Gutierrez objected to the
sentence on the ground that it exceeded the statutory maximum,
which objection the district court overruled.
Marrufo-Gutierrez appealed his conviction and sentence,
arguing that because the indictment did not state a § 1326(b)(1)
offense because it did not allege a prior conviction, his sentence
exceeded the statutory maximum in violation of the Constitution.
In the alternative he challenged the constitutional validity of §
1326(b)(1). In his brief on appeal Marrufo-Gutierrez acknowledged
that his arguments were foreclosed by precedent, but raised them
2
only to preserve them for possible review by the Supreme Court. We
affirmed the conviction and sentence in an unpublished opinion.2
Marrufo-Gutierrez then petitioned the United States Supreme Court
for a writ of certiorari. After Booker was decided, Marrufo-
Gutierrez submitted a supplemental petition for certiorari in which
he challenged his mandatory Guideline sentence. As noted above,
the Supreme Court vacated the judgment and remanded to this court
for further consideration in light of Booker.
II. DISCUSSION
A. Standard of Review
Marrufo-Gutierrez raised his Booker claim for the first time
in his supplemental 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
defendant cannot satisfy the plain error standard, he certainly
cannot satisfy the extraordinary circumstances standard.5 As
Marrufo-Gutierrez’s claim does not survive plain error review, we
need not address the question of extraordinary circumstances.
2
United States v. Marrufo-Gutierrez, No. 04-50475, 110 Fed.
Appx. 432 (5th Cir. October 21, 2004) (unpublished opinion).
3
United States v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).
4
Id.
5
Id.
3
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 (1) constitutes error, and (2) 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 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
reached a significantly different result under an advisory
Guidelines scheme.10
B. Merits
In his supplemental letter brief, Marrufo-Gutierrez concedes
that “the district court imposed [a] sentence at the top of [the
Guidelines] range, and it gave no indication that it would have
given a lower sentence in an advisory system.” He further
6
United States v. Cotton, 535 U.S. 625, 631 (2002).
7
Id.
8
United States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005).
9
Id. (quoting United States v. Dominguez Benitez, 542 U.S. 74
(2004)).
10
Id. at 522.
4
acknowledges that he cannot satisfy the plain error standard we
articulated in Mares, but expresses his disagreement with that
decision in order to preserve a challenge for possible Supreme
Court review. Mares 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.
III. CONCLUSION
As there exist no extraordinary circumstances or other grounds
for relief, Marrufo-Gutierrez’s sentence is AFFIRMED. The
Government’s motion to reinstate our prior affirmance is DENIED as
moot.
5