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. 04-50535
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO JESUS MARTINEZ-ALFARO, also
known as Francisco Rendon Martinez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
(5:03-CR-608-ALL)
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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
Francisco Martinez-Alfaro 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. Martinez-Alfaro opposes the Government’s
*
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this opinion should not be published and is not precedent except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).
motion. For the following reasons, we find that Booker does not
affect Martinez-Alfaro’s sentence.
I. BACKGROUND
Martinez-Alfaro 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. Martinez-
Alfaro had a prior conviction for aggravated sexual assault, which
under § 1326(b) triggered an increase in the statutory maximum term
of imprisonment and supervised release. The district court imposed
a sentence of 57 months’ imprisonment to be followed by three
years’ supervised release. Martinez-Alfaro objected to the
sentence on the ground that it exceeded the statutory maximum,
which objection the district court overruled.
Martinez-Alfaro appealed his conviction and sentence, arguing
that because the indictment did not state a § 1326(b) offense
because it did not allege a prior conviction, his sentence exceeded
the statutory maximum in violation of the Constitution. In his
brief on appeal Martinez-Alfaro acknowledged that his arguments
were foreclosed by precedent, but raised them only to preserve them
for possible review by the Supreme Court. We affirmed the
conviction and sentence in an unpublished opinion.2 Martinez-
Alfaro then petitioned the United States Supreme Court for a writ
of certiorari. After Booker was decided, Martinez-Alfaro submitted
2
United States v. Martinez-Alfaro, No. 04-50535, 110 Fed.
Appx. 430 (5th Cir. October 21, 2004) (unpublished opinion).
2
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
Martinez-Alfaro 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
Martinez-Alfaro’s claim does not survive plain error review, we
need not address the question of extraordinary circumstances.
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
3
United States v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).
4
Id.
5
Id.
6
United States v. Cotton, 535 U.S. 625, 631 (2002).
3
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, Martinez-Alfaro concedes
that “the district court made no particular remarks disagreeing
with the requirements of the mandatory guidelines,” or otherwise
indicating that it would have sentenced him differently under an
advisory Guidelines scheme. Instead, Martinez-Alfaro calls to our
attention “mitigating circumstances surrounding [his] illegal
reentry offense that support a finding of a reasonable likelihood
of a lower sentence,” and notes after reviewing these mitigating
circumstances that the district court imposed the lowest Guideline
sentence.
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
In United States v. Bringier, we held that “[t]he fact that
the sentencing judge imposed the minimum sentence under the
Guideline range ... alone is no indication that the judge would
have reached a different conclusion under an advisory scheme.”11
In his supplemental letter brief, Martinez-Alfaro attempts to
distinguish Bringier from his case based on factual differences.
But these differences —— for example, that Bringier was a “large-
scale drug trafficker” while Martinez-Alfaro was “an illegal alien
who merely crossed the border” —— have no bearing whatsoever on the
question whether we may infer from a Guideline-minimum sentence
that the defendant would have been sentenced differently under an
advisory scheme. The significance of any factual differences is,
of course, borne out in the sentences imposed: Bringier was
sentenced to a Guideline-minimum 30 years’ imprisonment, compared
to Martinez-Alfaro’s 57 months’. Yet, in neither case may we
conclude that the district court would have imposed a lesser
sentence under an advisory scheme. Martinez-Alfaro’s attempt to
distinguish Bringier is simply unconvincing. As he fails to
demonstrate from the record that his sentence would have been
significantly different under an advisory Guidelines scheme, he has
not carried his burden to establish error affecting substantial
rights.
Martinez-Alfaro next expresses his disagreement with our
application of the plain error standard, as articulated in Mares,
11
405 F.3d 310, 318 n.4 (5th Cir. 2005) (citing Mares, 402
F.3d at 521-22).
5
in order to preserve a challenge for possible Supreme Court review.
Mares is the settled law of this circuit, however, and we may
revisit it only en banc or following a Supreme Court decision that
effectively overturns it.
As Martinez-Alfaro has failed to satisfy plain error review,
we do not reach his argument that error in his sentencing seriously
affected the fairness, integrity and public reputation of the
proceedings.
III. CONCLUSION
As there exist no extraordinary circumstances or other grounds
for relief, Martinez-Alfaro’s sentence is AFFIRMED. The
Government’s motion to reinstate our prior affirmance is DENIED as
moot.
6