United States v. Navarro-Molina , 169 F. App'x 880 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 7, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-50387
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAUL NAVARRO-MOLINA,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Western District of Texas, El Paso
(3:03-CR-1901-ALL-KC)
- - - - - - - - - -
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 Saul Navarro-Molina’s sentence.
I. BACKGROUND
Navarro-Molina, a citizen of Mexico, pleaded guilty to and was
convicted of being in the United States illegally after removal, in
violation of 8 U.S.C. § 1326(a). Standing alone, a § 1326(a)
*
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this opinion should not be published and is not precedent except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).
offense carries a maximum penalty of two years’ imprisonment and
one year of supervised release. Navarro-Molina’s § 1326(a)
offense, however, did not stand alone: Prior to his removal from
the United States, Navarro-Molina 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. Navarro-Molina’s presentencing
report (“PSR”) recommended that he receive a total offense level
under the U.S. Sentencing Guidelines of 21, which included a 16-
level upward adjustment for his prior aggravated felony conviction,
and a 3-level downward adjustment for acceptance of responsibility
for his § 1326(a) offense. Combined with Navarro-Molina’s Criminal
History Category of III, his offense level of 21 resulted in a
Guidelines sentencing range of 46-57 months’ imprisonment. The
district court accepted the PSR’s recommendation and sentenced
Navarro-Molina at the bottom-end of the Guidelines sentencing
range, imposing a sentence of 46 months’ imprisonment. Navarro-
Molina objected to the sentence on the ground that it exceeded the
maximum authorized by § 1326(a), but the district court overruled
his objection.
Navarro-Molina then appealed his sentence to this court,
arguing that it exceeded the statutory maximum in violation of his
rights under the Fifth Amendment’s Due Process Clause because the
indictment charging him with a § 1326(a) violation did not
separately state a § 1326(b) offense. In his brief on appeal,
Navarro-Molina acknowledged that precedent foreclosed his argument,
2
but he raised it anyway to preserve possible Supreme Court review.
We affirmed the district court’s judgment in an unpublished
opinion.2 Navarro-Molina then petitioned the Supreme Court for a
writ of certiorari. After the Court handed down Booker, Navarro-
Molina filed a supplemental petition for certiorari with the Court
in which, for the first time, he raised a Booker challenge to his
mandatory Guidelines sentence. In response, the Supreme Court
granted Navarro-Molina’s petition, vacated our judgment affirming
his sentence, and remanded to us for reconsideration in light of
Booker.3 We again affirm Navarro-Molina’s sentence.
II. DISCUSSION
A. Standard of Review
Navarro-Molina raised his Booker claim for the first time in
his supplemental petition for 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, Navarro-Molina cannot
meet the requirements of plain error review, he certainly cannot
2
United States v. Navarro-Molina, No. 04-50387, 111 Fed.
Appx. 321 (5th Cir. October 21, 2004) (unpublished opinion).
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.3
satisfy the requirements of extraordinary circumstances review.6
And Navarro-Molina cannot: He has failed to show, as is required by
plain error review, that the error in his case affected his
substantial rights. We therefore need not address whether
extraordinary circumstances exist.
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.”7 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
reputation of judicial proceedings.”8 Under Booker, a district
court’s sentencing of a defendant under the formerly-mandatory
Sentencing Guidelines (1) constitutes error (2) that is plain.9
Whether the error affects substantial rights is a more complex
inquiry in 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.’”10 That
may be shown, in turn, by the defendant’s “demonstrat[ion of] a
probability ‘sufficient to undermine confidence in the outcome.’”11
6
Id.7
United States v. Cotton, 535 U.S. 625, 631 (2002).
8
Id.9
United States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005).
10
Id. (quoting United States v. Olano, 507 U.S. 725, 734
(1993)).
11
Id. (quoting United States v. Dominguez Benitez, 542 U.S.
74 (2004)).
4
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.”12 By all
accounts, this burden is “difficult”13 —— but not impossible14 —— to
meet.
B. Merits
In measuring a defendant’s attempt to show that a plain error
affected his substantial rights, our decisions have considered “two
issues: first, whether the judge made any statements during
sentencing indicating that he would have imposed a lesser sentence
had he not considered the Guidelines mandatory; [and] second, the
relationship between the actual sentence imposed and the range of
sentences provided by the Guidelines.”15 Navarro-Molina does not
contend that the district court made any statements expressing a
preference for a lower sentence: In his brief on appeal he concedes
that “the district court made no particular remarks disagreeing
with the requirements of the mandatory guidelines,” or otherwise
indicating that it would have sentenced him differently under an
advisory Guidelines scheme. Instead, Navarro-Molina calls to our
12
Id.13
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)).
14
See Pennell, 409 F.3d at 245.
15
Rodriguez-Gutierrez, 428 F.3d at 203.
5
attention “mitigating circumstances” —— namely, the facts that he
returned to the United States to seek work, and that he requested
that the district court order him to undergo alcohol and drug
treatment —— “that support a finding of a reasonable likelihood of
a lower sentence.” In addition, Navarro-Molina argues that the
district court’s decision to impose the lowest term of imprisonment
permitted by his Guidelines sentencing range —— which Navarro-
Molina contends was “[a]pparently” based on “the[] mitigating
circumstances” surrounding his case —— indicates that the district
court would likely have imposed a different sentence under an
advisory set of Guidelines.
We hold that Navarro-Molina has not carried his burden of
showing that Booker error “‘affected the outcome of [his] district
court proceedings.’”16 First, under our decision in United States
v. Bringier, Navarro-Molina’s invocation of the district court’s
imposition of a sentence at the bottom of the Guidelines range is
not enough to carry his burden.17 And, contrary to Navarro-Molina’s
argument, Bringier is not distinguishable from this case. Navarro-
Molina contends that unlike the Bringier defendant, he presents
sufficient mitigating circumstances to raise a reasonable
likelihood that the district court would have imposed a lower
sentence under an advisory Guidelines scheme. But the differences
16
Mares, 402 F.3d at 521 (quoting Olano, 507 U.S. at 734).
17
See United States v. Bringier, 405 F.3d 310, 318 N.4 (5th
Cir. 2005) (reasoning that “[t]he fact that the sentencing judge
imposed the minimum sentence under the Guideline range . . . alone
is no indication that the judge would have reached a different
conclusion under an advisory scheme.”).
6
between this case and Bringier —— for example, that Bringier was a
“large-scale drug trafficker” while Navarro-Molina is “an illegal
alien who merely crossed the border to find work” —— have no
bearing whatsoever on the question whether we may infer from a
Guideline-minimum sentence that Navarro-Molina would have been
sentenced differently under an advisory scheme. The significance
of any factual differences is, of course, borne out in the
sentences imposed: Bringier was sentenced to a Guideline-minimum
30 years’ imprisonment, compared to Navarro-Molina’s 46 months.
Yet, in neither case may we conclude that the district court would
have imposed a lesser sentence under an advisory scheme. Navarro-
Molina’s attempt to distinguish Bringier is simply unconvincing.
Second, Navarro-Molina contends that his mitigating
circumstances themselves raise a reasonable likelihood that the
district court would have imposed a lower sentence under an
advisory Guidelines scheme. “Despite the [district] court’s
demonstrated willingness to impose the lowest available sentence,”
contends Navarro-Molina, “it could not reduce [his sentence] below
46 months based on the most sympathetic circumstances of his case
[because, under the then-mandatory Guidelines,] Navarro’s drug and
alcohol problems were not grounds for departure.” This argument
misses the mark. All Navarro-Molina has done is raise the mere
possibility that, post-Booker, the district court would have
considered Navarro-Molina’s drug and alcohol problems as a reason
to impose a lower sentence. But he has not pointed us to any
indication in the record that the district court actually would
7
have done so had it been so empowered. Under Mares, a defendant
must do more than raise a mere possibility to carry his burden; he
must “‘show that the error actually did make a difference: if it is
equally plausible that the error worked in favor of the defense,
the defendant loses; if the effect of the error is uncertain so
that we do not know which, if either, side it helped the defendant
loses.’”18 Navarro-Molina therefore fails to carry his burden, and
thus fails to satisfy plain error review. We need not reach his
argument that the error in his sentencing seriously affected the
fairness, integrity and public reputation of the proceedings.
Finally, in a last-ditch effort, Navarro-Molina expresses
disagreement with the mechanics of Mares’s plain error standard.
He recognizes that Mares forecloses this argument, but he
nonetheless raises the point to preserve a challenge to Mares’s
articulation of the plain error standard of review, arguing that in
Mares we got it wrong, while the plain error standard employed by
other courts (the Sixth Circuit, for example19) 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.20
18
402 F.3d at 521 (quoting United States v. Rodriguez, 398
F.3d 1291, 1299 (11th Cir. 2005)).
19
See, e.g., United States v. Barnett, 398 F.3d 516 (6th Cir.
2005).
20
See Hogue v. Johnson, 131 F.3d 466, 491 (5th Cir. 1997).
8
Because Navarro-Molina cannot satisfy plain error review, he
does not present extraordinary circumstances entitling him to
resentencing. We affirm his sentence.
III. CONCLUSION
As there exist no extraordinary circumstances or other grounds
for relief, Navarro-Molina’s sentence is AFFIRMED. The
Government’s pending motions to reinstate our prior affirmance and,
in the alternative, to extend time to file its supplemental brief
are DENIED as moot.
9