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this opinion should not be published and is not precedent except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conviction and sentence, and we affirmed in an unpublished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.
4