United States v. Gonzalez-Trejo ( 2006 )

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.
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Appeal from the United States District Court
for the Western District of Texas, Del Rio
(No. DR-03-CR-597-1-AML)
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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this opinion should not be published and is not precedent except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).
5