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. 04-50519
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE FRAUSTO-GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
(No. 3:03-CR-2300-ALL-DB)
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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
Jorge Frausto-Garcia has submitted a supplemental letter brief
addressing the impact of Booker. The government has submitted a
motion to reinstate our prior affirmance of Frausto-Garcia’s
conviction and sentence, which Frausto-Garcia 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this opinion should not be published and is not precedent except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
Frausto-Garcia pleaded guilty to reentering the United States
unlawfully following deportation. The district court increased
Frausto-Garcia’s offense level under the Guidelines because he
committed his reentry offense while on supervised release and less
than two years after being released from custody for a prior
offense. Frausto-Garcia appealed his conviction and sentence, and
we affirmed in an unpublished opinion.2 Frausto-Garcia then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
Frausto-Garcia 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
defendant cannot satisfy plain error review, he certainly cannot
2
U.S. v. Frausto-Garcia, No. 04-50519, 111 Fed. Appx 319 (5th
Cir. Oct. 21, 2004).
3
U.S. v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).
4
Id.
2
satisfy extraordinary circumstances review.5 Frausto-Garcia 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 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
the record an indication that the sentencing judge would have
reached a significantly different result under an advisory
Guidelines scheme.10
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)).
10
Id. at 522.
3
B. Merits
In his supplemental letter brief, Frausto-Garcia concedes that
he cannot carry his burden under the third prong of the plain error
test. Specifically, Frausto-Garcia 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 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, Frausto-Garcia’s sentence is AFFIRMED. The
government’s motion to reinstate our prior affirmance is DENIED as
moot.
4