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. 04-50570
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE JESUS GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
(No. 3:04-CR-373-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 Jose
Jesus Garcia has submitted a supplemental letter brief addressing
the impact of Booker. The government has submitted a motion to
reinstate our prior affirmance of Garcia’s conviction and sentence,
which 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this opinion should not be published and is not precedent except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
Garcia pleaded guilty to reentering the United States
unlawfully following deportation. Garcia appealed his conviction
and sentence, and we affirmed in an unpublished opinion.2 Garcia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
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 satisfy
extraordinary circumstances review.5 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
2
U.S. v. Garcia, No. 04-50570, 111 Fed. Appx 318 (5th Cir.
Oct. 21, 2004).
3
U.S. v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).
4
Id.
5
Id.
2
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
B. Merits
In his supplemental letter brief, Garcia concedes that he
cannot carry his burden under the third prong of the plain error
test. Specifically, Garcia is unable to point to any indication in
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
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, Garcia’s sentence is AFFIRMED. The government’s motion
to reinstate our prior affirmance is DENIED as moot.
4