United States v. Herrera-Nunez

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. 04-50675
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus

SANTOS HERERRA-NUNEZ,

Defendant-Appellant.

- - - - - - - - - -
Appeal from the United States District Court
for the Western District of Texas
(No. EP-04-CR-316-PRM)
- - - - - - - - - -

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

Santos Herrera-Nunez has submitted a supplemental letter brief

addressing the impact of Booker. The government has submitted a

motion to reinstate our prior affirmance of Herrera-Nunez’s

conviction and sentence.

*
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this opinion should not be published and is not precedent except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

Herrera-Nunez pleaded guilty to reentering the United States

unlawfully following removal, in violation of 8 U.S.C. § 1326. The

district court determined that the applicable term of imprisonment

under the then-mandatory United States Sentencing Guidelines

(“Guidelines”) was 46 to 57 months, and ultimately sentenced him to

a term of 48 months imprisonment. Herrera-Nunez appealed his

conviction and sentence, and we affirmed in an unpublished

opinion.2 Herrera-Nunez 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

Herrera-Nunez 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

2
United States v. Herrera-Nunez, No. 04-50519, 110 Fed. Appx
428 (5th Cir. Oct. 21, 2004).
3
United States v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).
4
Id.
2
defendant cannot satisfy plain error review, he certainly cannot

satisfy extraordinary circumstances review.5

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
United States v. Cotton, 535 U.S. 625, 631 (2002).
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.
3
B. Merits

In his supplemental letter brief, Herrera-Nunez concedes that

he cannot carry his burden under the third prong of the plain error

test. Specifically, Herrera-Nunez 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 advances his arguments

regarding his sentence only to preserve them for possible Supreme

Court review. As Herrera-Nunez candidly admits, his sentence does

not conflict with Booker under the settled law of this Circuit.

Accordingly, we affirm the sentence as imposed.

III. CONCLUSION

As there exist no extraordinary circumstances or other grounds

for relief, Herrera-Nunez’s sentence is AFFIRMED. The government’s

motion to reinstate our prior affirmance is DENIED as moot.