United States v. Gonzalez-Trejo

Opinion

United States Court of Appeals Fifth Circuit F I L E D REVISED MAY 12, 2006 March 6, 2006 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 03-51417 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

ALFREDO GONZALEZ-TREJO,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas, Del Rio (No. DR-03-CR-597-1-AML) - - - - - - - - - -

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 its recent opinion in United States v.

Booker.1 At our request, the parties have commented on the impact

of Booker. For the following reasons, we conclude that Booker does

not affect Defendant-Appellant Alfredo Gonzalez-Trejo’s sentence.

I. BACKGROUND

Gonzalez-Trejo, a citizen of Mexico, pleaded guilty to and was

convicted of reentering the United States illegally following

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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). removal, in violation of 8 U.S.C. § 1326(a). Standing alone, a §

1326(a) offense carries a maximum penalty of two years’

imprisonment and one year of supervised release. Gonzalez-Trejo’s

§ 1326(a) offense, however, did not stand alone: Prior to his

removal from the United States, Gonzalez-Trejo was convicted of an

aggravated felony, which, under 8 U.S.C. § 1326(b)(2), increased

the maximum penalty for his § 1326(a) offense to 20 years’

imprisonment and three years’ supervised release. At his

sentencing —— which occurred prior to Booker —— Gonzalez-Trejo’s

prior conviction also led to a 16-level increase in his offense

level under the U.S. Sentencing Guidelines. Following the

Guidelines, the court sentenced Gonzalez-Trejo to 46 months’

imprisonment. Gonzalez-Trejo objected to the sentence on the

ground that it exceeded the maximum authorized by § 1326(a), but

the district court overruled his objection.

Gonzalez-Trejo then appealed his sentence to this court,

arguing that it exceeded the statutory maximum in violation of his

rights under the Fifth Amendment because the indictment charging

him with a § 1326(a) offense did not separately state a § 1326(b)

offense. After we affirmed his sentence in an unpublished

opinion,2 Gonzalez-Trejo petitioned the Supreme Court for a writ of

certiorari, asserting his Booker claim for the first time. The

Supreme Court granted Gonzalez-Trejo’s petition, vacated our

judgment affirming his sentence, and remanded to us for

2 United States v. Gonzalez-Trejo, No. 03-51417, 110 Fed. Appx. 460 (5th Cir. 2004).

2 reconsideration in light of Booker.3 We again affirm Gonzalez-

Trejo’s sentence.

II. DISCUSSION

A. Standard of Review

Gonzalez-Trejo raised his Booker claim for the first time in

his petition for a writ of certiorari. We will therefore review

his Booker claim only in the presence of “extraordinary

circumstances.”4 Although we have yet to flesh out the contours of

precisely what constitutes “extraordinary circumstances,” we know

that the extraordinary circumstances standard is more onerous than

the plain error standard.5 If, therefore, Gonzalez-Trejo cannot

meet the requirements of plain error review, he certainly cannot

satisfy the requirements of extraordinary circumstances review.

And Gonzalez-Trejo cannot; as he concedes, his claim does not

survive plain error review. We therefore need not address his

argument that, for a variety of reasons, the extraordinary

circumstances standard is inapplicable in this case.

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 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

3 Alfaro v. United States, —— U.S. ——, 125 S. Ct. 1422 (2005). 4 United States v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005). 5 Id. 6 United States v. Cotton, 535 U.S. 625, 631 (2002).

3 reputation of judicial proceedings.”7 Under Booker, a district

court’s sentencing of a defendant under the formerly-mandatory

Sentencing Guidelines (1) constitutes error that (2) is plain.8

Whether the error affects substantial rights is a more complex

inquiry for 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.’”9 That

may be shown, in turn, by the defendant’s “demonstrat[ion of] a

probability ‘sufficient to undermine confidence in the outcome.’”10

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

—— would have reached a significantly different result.”11 By all

accounts, this burden is “difficult”12 —— but not impossible13 —— to

meet.

B. Merits

7 Id. 8 United States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005). 9 Id. (quoting United States v. Olano, 507 U.S. 725, 734 (1993)). 10 Id. (quoting United States v. Dominguez Benitez, 542 U.S. 74 (2004)). 11 Id. 12 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)). 13 See Pennell, 409 F.3d at 245.

4 In his supplemental letter brief, Gonzalez-Trejo concedes that

“Mares appears to foreclose [his] plain-error claim in this

circuit.” Specifically, Gonzalez-Trejo 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 preserves a challenge to

the standard of review we adopted in Mares, arguing that in

Mares we got it wrong and the plain error standard employed by

other courts (the Sixth Circuit, for example14) gets it right.

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.15 Accordingly, we affirm the

sentence imposed by the district court below.

III. CONCLUSION

As there exist no extraordinary circumstances or other grounds

for relief, Gonzalez-Trejo’s sentence is

AFFIRMED.

14 See, e.g., United States v. Barnett, 398 F.3d 516 (6th Cir. 2005). 15 See Hogue v. Johnson, 131 F.3d 466, 491 (5th Cir. 1997).