United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 31, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-50556
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS CANO-ROBLEDO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas, El Paso
(EP-03-CR-2101-KC)
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ON REMAND FROM THE SUPREME COURT
OF THE UNITED STATES
Before JONES, Chief Judge, JOLLY and WIENER, Circuit Judges.
PER CURIAM*:
This matter is before us on remand from the Supreme Court for
reconsideration in light of United States v. Booker.1 At our
request, the parties have commented on the impact of Booker. We
conclude that Booker does not affect the sentence received by
Defendant-Appellant Jose Luis Cano-Robledo (“Cano-Robledo”).
I. FACTS AND PROCEEDINGS
*
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this opinion should not be published and is not precedent except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. 220, 125 S. Ct. 738 (2005).
Cano-Robledo pleaded guilty to and was convicted of being
found in the United States after deportation in violation of 8
U.S.C. § 1326(a), which carries a maximum penalty of two years’
imprisonment and one year of supervised release. Cano-Robledo’s
Presentencing Report (“PSR”) calculated his offense level to be 21,
his criminal history category to be IV, and his resulting
sentencing range under the United States Sentencing Guidelines
(“the Guidelines” or “U.S.S.G.”) to be 57 to 71 months’
imprisonment. In arriving at that sentencing range, the PSR
recommended, and the district court imposed, (1) a 16-level
increase in Cano-Robledo’s offense level because he had previously
been deported from the United States after being convicted of a
crime of violence; (2) a two-point increase in his criminal history
points because, at the time of the instant § 1326(a) violation,
Cano-Robledo was under supervised release from a previous federal
conviction; and (3) a one-point increase in his criminal history
points because Cano-Robledo committed the instant § 1326(a)
violation less than two years after being released from a term of
imprisonment. Cano-Robledo did not object on Sixth Amendment
grounds to the district court’s reliance on these facts in
sentencing him. The district court sentenced Cano-Robledo at the
bottom of the Guidelines’ sentencing range, imposing a sentence of
57 months’ imprisonment, three years’ supervised release, and a
$100 special assessment.
In addition to sentencing Cano-Robledo for the § 1326(a)
offense, the district court also revoked the remainder of his
2
supervised release and sentenced him to an additional eight months
imprisonment to run concurrently with his 57 month sentence.
Section 7B1.3(f) of the Guidelines specifically states that “any
term of imprisonment imposed upon the revocation of . . .
supervised release shall be ordered to be served consecutively to
any sentence of imprisonment that the defendant is serving.”2 But,
unlike most of the pre-Booker sections of the Guidelines,
§ 7B1.3(f) was and is a non-binding policy statement.3 The
district court thus took it into consideration, but chose not to
follow its recommendation.
Cano-Robledo then appealed his sentence to us, contending
that it violated the Fifth Amendment’s Due Process Clause. He
acknowledged that our precedent foreclosed his argument, but he
raised it to preserve possible Supreme Court review. In that
appeal, Cano-Robledo did not assert a Sixth Amendment challenge to
the district court’s reliance, for sentencing purposes, on facts
neither admitted by him nor proved to the jury beyond a reasonable
doubt. We affirmed the district court’s judgment in an unpublished
opinion.4
2
U.S.S.G. § 7B1.3(f), p.s. (2003).
3
See United States v. Headrick, 963 F.2d 777, 781-82 (5th
Cir. 1992) (holding that “the policy statements regarding
revocation of supervised release contained in Chapter 7 of the
[Guidelines] are advisory rather than mandatory in nature”)
(internal quotation marks omitted) (alteration in original).
4
United States v. Cano-Robledo, 110 Fed. Appx. 429 (5th Cir.
October 21, 2004) (unpublished per curiam opinion).
3
Cano-Robledo then petitioned the Supreme Court for a writ of
certiorari. After the Court handed down Booker, he filed a
supplemental petition for certiorari in which, for the first time,
he raised a Booker challenge to his mandatory Guidelines sentence.
The Supreme Court granted Cano-Robledo’s petition, vacated our
judgment affirming his sentence, and remanded for our
reconsideration in light of Booker.5 We again affirm Cano-
Robledo’s sentence.
II. ANALYSIS
A. Standard of Review
As Cano-Robledo raised his Booker claim for the first time in
his supplemental petition for certiorari, we will review it only in
the presence of “extraordinary circumstances.”6 The precise
contours of “extraordinary circumstances” review remain undefined
in this Circuit. We do know, however, that the extraordinary
circumstances standard is more difficult to meet than the plain
error standard.7 If Cano-Robledo is unable to meet the
requirements of plain error review, then, he certainly cannot
satisfy the requirements of extraordinary circumstances review.8
And, although it is a close question whether Cano-Robledo satisfies
plain error review, we hold that he has not demonstrated
extraordinary circumstances.
5
Alfaro v. United States, 543 U.S. 1183 (2005).
6
United States v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).
7
Id.
8
Id.
4
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.”9 If the circumstances in a case meet all
three criteria, we may exercise our discretion to notice the error
only if it “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.”10 Under Booker, a district
court’s enhancement of a defendant’s sentence beyond the statutory
maximum in reliance on facts not admitted by the defendant or found
by a jury (1) constitutes error (2) that is plain.11 Whether the
error affects substantial rights is a more complex inquiry in which
the defendant bears the burden of proof. He will carry this burden
only if he can “show[] that the error ‘must have affected the
outcome of the district court proceedings.’”12 That may be shown,
in turn, by the defendant’s “demonstrat[ion of] a probability
‘sufficient to undermine confidence in the outcome.’”13 To
demonstrate such a probability, the defendant must identify in the
record an indication that the “sentencing judge —— sentencing under
an advisory [Guidelines] scheme rather than a mandatory one ——
9
United States v. Cotton, 535 U.S. 625, 631 (2002).
10
Id.
11
United States v. Mares, 402 F.3d 511, 521 (5th Cir.), cert.
denied sub nom., Mares v. United States, 126 S. Ct. 43 (2005).
12
Id. (quoting United States v. Olano, 507 U.S. 725, 734
(1993)).
13
Id. (quoting United States v. Dominguez Benitez, 542 U.S.
74 (2004)).
5
would have reached a significantly different result.”14 By all
accounts, this burden is “difficult”15 —— but not impossible16 —— to
meet.
B. Merits
Cano-Robledo insists that he meets the requisites of plain
error review. Even if he has, though, we are not operating under
a plain error standard —— we shall review Cano-Robledo’s
Booker claim only in the presence of “extraordinary
circumstances.”17 And, even if Cano-Robledo is correct that he
meets the lower plain error standard, he barely does, and certainly
not in a manner that presents the kind of extraordinary
circumstances in which we will review a claim raised for the first
time in a petition for a writ of certiorari.
Cano-Robledo calls to our attention (1) “the mitigating
circumstances surrounding [his] illegal reentry offense,” (2) the
district court’s imposition of a sentence at the bottom of the
Guidelines range, (3) the district court’s comments at his
sentencing, and (4) the district court’s decision to impose a
concurrent (rather than consecutive) sentence for his supervised
release violation. We reject outright Cano-Robledo’s first
14
Id.
15
United States v. Pennell, 409 F.3d 240, 254 (5th Cir. 2005);
see also United States v. Rodriguez-Gutierrez, 428 F.3d 201, 203
(5th Cir. 2005) (“[T]he Supreme Court mandates that establishing
[plain] error ‘should not be too easy.’”) (quoting United States v.
Dominguez Benitez, 542 U.S. 74 (2004)).
16
See Pennell, 409 F.3d at 245.
17
Taylor, 409 F.3d at 676.
6
argument. His “mitigating circumstances” —— namely, that he
illegally “returned to the United States because his wife was
pregnant and about to give birth,” and that he was “born in Mexico,
which is a poor country” —— say nothing about the district court’s
likely willingness to impose a lower sentence under an advisory set
of Guidelines. Moreover, Cano-Robledo is unable to point to
anything in the record supporting such a conclusion.18
Cumulatively, however, Cano-Robledo’s remaining arguments are
more persuasive. First, Cano-Robledo points out that at his
sentencing, the district court seemed to express sympathy for the
harsh sentence compelled by the Guidelines. In response to Cano-
Robledo’s complaint that he would be sentenced to “57 to 71 months
only for intending to come here to work to do something for [his]
son” while “people who bring drugs across are getting 22 months,”
the court stated that it “understand[s his] concerns.”
Nevertheless, said the court, “you have to understand that the law
is the law. . . . [E]very time you cross [the border illegally],
based on the laws of the United States, the sentence just increases
and increases and increases.” Second, Cano-Robledo contends that
the district court’s decision to order his § 1326(a) and revocation
sentences to run concurrently “demonstrate[s] that it believed the
revocation offense warranted a lesser sentence than called for by
the advisory revocation guidelines.” That, insists Cano-Robledo,
demonstrates “at least a reasonable probability that, had it
understood all the guidelines to be advisory, the court would have
18
See Mares, 402 F.3d at 521.
7
shown leniency regarding [his § 1326(a)] sentence as well.”
Finally, Cano-Robledo emphasizes the fact that the district court
sentenced him at the bottom of the Guidelines’ sentencing range.
Taken individually, each of Cano-Robledo’s arguments would
fail.19 But taken together, it is at least arguable that the record
demonstrates a sufficient probability that the “sentencing judge ——
sentencing under an advisory [Guidelines] scheme rather than a
mandatory one —— would have reached a significantly different
result.”20 We need not, however, resolve this question because,
even if Cano-Robledo has met his burden under plain error review,
he has not presented sufficiently extraordinary circumstances for
us to consider his Booker claim. In fact, he has made no effort to
explain how his circumstances are extraordinary. We therefore
conclude that he has not met his burden.
19
Cf. United States v. Bringier, 405 F.3d 310, 318 n.4 (5th
Cir. 2005) (reasoning 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”) (emphasis added).
Contrary to Cano-Robledo’s argument, Bringier is not
distinguishable. The differences between this case and Bringier ——
for example, that Bringier was a “large-scale drug trafficker”
while Cano-Robledo is “an illegal alien who merely crossed the
border to see his family” —— have no bearing on the question
whether we may infer from a Guidelines-minimum sentence that Cano-
Robledo 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 Cano-
Robledo’s 57 months. Yet, in neither case may we conclude that the
district court would have imposed a lesser sentence under an
advisory scheme.
20
Id.
8
Cano-Robledo concludes by disagreeing with the mechanics of
the plain error standard we announced in Mares. He recognizes that
our precedent forecloses this argument, but nonetheless raises the
point to preserve a challenge to our plain error standard. Mares
is the settled law of this Circuit, however, and we may revisit it
only en banc or following a Supreme Court decision that actually or
effectively overturns it.21
III. CONCLUSION
As Cano-Robledo has not demonstrated extraordinary
circumstances or other grounds for relief, we AFFIRM his sentence.
The Government’s pending motions to reinstate our prior affirmance
and, in the alternative, to extend time to file its supplemental
brief, are DENIED as moot.
21
See Hogue v. Johnson, 131 F.3d 466, 491 (5th Cir. 1997).
9