United States v. Marrufo-Gutierrez

172 F. App'x 40

Opinion

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. 04-50475 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

NICOLAS MARRUFO-GUTIERREZ,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas (3:04-CR-202-ALL-DB) - - - - - - - - - - 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

Nicolas Marrufo-Gutierrez 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. Marrufo-Gutierrez opposes 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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). Government’s motion. For the following reasons, we find that

Booker does not affect Marrufo-Gutierrez’s sentence.

I. BACKGROUND

Marrufo-Gutierrez 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 and one year of supervised release. Marrufo-

Gutierrez had a prior conviction for illegal reentry, which under

§ 1326(b)(1) triggered an increase in the statutory maximum term of

imprisonment and supervised release. It also resulted in a four-

level enhancement to the Guidelines offense level, which, combined

with Marrufo-Gutierrez’s criminal history score, produced a

Guidelines sentencing range of 21 to 27 months. The district court

imposed a sentence of 27 months’ imprisonment to be followed by

three years’ supervised release. Marrufo-Gutierrez objected to the

sentence on the ground that it exceeded the statutory maximum,

which objection the district court overruled.

Marrufo-Gutierrez appealed his conviction and sentence,

arguing that because the indictment did not state a § 1326(b)(1)

offense because it did not allege a prior conviction, his sentence

exceeded the statutory maximum in violation of the Constitution.

In the alternative he challenged the constitutional validity of §

1326(b)(1). In his brief on appeal Marrufo-Gutierrez acknowledged

that his arguments were foreclosed by precedent, but raised them

2 only to preserve them for possible review by the Supreme Court. We

affirmed the conviction and sentence in an unpublished opinion.2

Marrufo-Gutierrez then petitioned the United States Supreme Court

for a writ of certiorari. After Booker was decided, Marrufo-

Gutierrez submitted a supplemental petition for certiorari in which

he challenged his mandatory Guideline sentence. As noted above,

the Supreme Court vacated the judgment and remanded to this court

for further consideration in light of Booker.

II. DISCUSSION

A. Standard of Review

Marrufo-Gutierrez 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

Marrufo-Gutierrez’s claim does not survive plain error review, we

need not address the question of extraordinary circumstances.

2 United States v. Marrufo-Gutierrez, No. 04-50475, 110 Fed. Appx. 432 (5th Cir. October 21, 2004) (unpublished opinion). 3 United States v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005). 4 Id. 5 Id.

3 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

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, Marrufo-Gutierrez concedes

that “the district court imposed [a] sentence at the top of [the

Guidelines] range, and it gave no indication that it would have

given a lower sentence in an advisory system.” He further

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.

4 acknowledges that he cannot satisfy the plain error standard we

articulated in Mares, but expresses his disagreement with that

decision in order to preserve a challenge for possible Supreme

Court review. Mares 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.

III. CONCLUSION

As there exist no extraordinary circumstances or other grounds

for relief, Marrufo-Gutierrez’s sentence is AFFIRMED. The

Government’s motion to reinstate our prior affirmance is DENIED as

moot.