United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 6, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-50597
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NOE MACIAS-ORTIZ, also known as
Noe Macias-Garcia, also known as
Gerardo Macias-Ortiz
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Western District of Texas
(5:04-CR-318-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 Noe
Macias-Ortiz 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. Macias-Ortiz opposes the Government’s motion. For 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this opinion should not be published and is not precedent except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).
following reasons, we find that Booker does not affect Macias-
Ortiz’s sentence.
I. BACKGROUND
Macias-Ortiz 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. Macias-Ortiz had a prior felony conviction
for drug trafficking, which under § 1326(b) triggered an increase
in the statutory maximum term of imprisonment. The district court
imposed a sentence of 57 months’ imprisonment. Macias-Ortiz
objected to the sentence on the ground that it exceeded the
statutory maximum, which objection the district court overruled.
Macias-Ortiz 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 his constitutional due
process rights. In his brief on appeal Macias-Ortiz 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affirmed the conviction and sentence in an unpublished opinion.2
Macias-Ortiz then petitioned the United States Supreme Court for a
writ of certiorari. After Booker was decided, Macias-Ortiz
submitted a supplemental petition for certiorari in which he
challenged his mandatory Guideline sentence. As noted above, the
2
United States v. Macias-Ortiz, No. 04-50597, 110 Fed. Appx.
427 (5th Cir. October 21, 2004) (unpublished opinion).
2
Supreme Court vacated the judgment and remanded to this court for
further consideration in light of Booker.
II. DISCUSSION
A. Standard of Review
Macias-Ortiz 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
Macias-Ortiz’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
reputation of judicial proceedings.”7 Since Booker, sentencing
under mandatory Guidelines (1) constitutes error, and (2) that
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).
7
Id.
3
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, Macias-Ortiz concedes that
“the district judge made no particular remarks disagreeing with the
requirements of the mandatory guidelines,” or otherwise indicating
that she would have sentenced him differently under an advisory
Guidelines scheme. Instead, Macias-Ortiz suggests that “the
circumstances of the case, particularly the district court’s
imposition of the lowest possible guideline sentence, support a
reasonable probability that a lower sentence would have been
imposed under an advisory guideline regime.”
As Macias-Ortiz acknowledges in his letter brief, in United
States v. Bringier11 we flatly rejected this same argument. We held
that “[t]he fact that the sentencing judge imposed the minimum
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.
11
405 F.3d 310 (5th Cir. 2005).
4
sentence under the Guideline range ... alone is no indication that
the judge would have reached a different conclusion under an
advisory scheme.”12 In his supplemental letter brief, however,
Macias-Ortiz 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 Macias-Ortiz 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 Macias-Ortiz’s 57 months’. Yet, in
neither case may we conclude that the district court would have
imposed a lesser sentence under an advisory scheme. Macias-Ortiz’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.
Macias-Ortiz next expresses his disagreement with our
application of the plain error standard, as articulated in Mares,
in order to preserve a challenge for possible Supreme Court review.
He urges us to abandon our approach and instead apply that of the
12
405 F.3d at 318 n.4 (citing Mares, 402 F.3d at 521-22).
5
Fourth Circuit.13 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 Macias-Ortiz 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, Macias-Ortiz’s sentence is AFFIRMED. The Government’s
motion to reinstate our prior affirmance is DENIED as moot.
13
See United States v. Hughes, 401 F.3d 540, 555 (4th Cir.
2005).
6