                                                        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. 04-50439
                           Summary Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,
versus

PEDRO JAQUEZ-TENORIO,

                                          Defendant-Appellant.


                         - - - - - - - - - -
            Appeal from the United States District Court
                  for the Western District of Texas
                        (3:04-CR-111-ALL-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

Pedro Jaquez-Tenorio 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.    Jaquez-Tenorio opposes the Government’s

motion.    For the following reasons, we find that Booker does not

affect Jaquez-Tenorio’s 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this opinion should not be published and is not precedent except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

       Jaquez-Tenorio 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.                         Jaquez-

Tenorio’s base offense level under § 2L1.2(a) of the Sentencing

Guidelines      was    8,    but   the     district    court   imposed    a   12-level

enhancement under § 2L1.2(b)(1)(B) based on a prior aggravated

felony conviction.          With a three-level reduction for acceptance of

responsibility, Jaquez-Tenorio’s total offense level was 17. This,

combined with a criminal history category of II, resulted in a

Guidelines imprisonment range of 27 to 33 months.                        The district

court sentenced Jaquez-Tenorio to 27 months’ imprisonment to be

followed      by   three     years’       supervised    release.      Jaquez-Tenorio

objected to the sentence on Apprendi2 grounds because it exceeded

the    statutory       maximum,       which       objection    the   district     court

overruled.

           Jaquez-Tenorio appealed his conviction and sentence, arguing

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

In    his    brief    on    appeal    Jaquez-Tenorio      acknowledged        that   his

arguments were foreclosed by precedent, but raised them only to

       2
           530 U.S. 466 (2000).

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

affirmed the conviction and sentence in an unpublished opinion.3

Jaquez-Tenorio then petitioned the United States Supreme Court for

a writ of certiorari.     After Booker was decided, Jaquez-Tenorio

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

     Jaquez-Tenorio 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.”4 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.5         Therefore, if a

defendant cannot satisfy the plain error standard, he certainly

cannot satisfy the extraordinary circumstances standard.6         As

Jaquez-Tenorio’s claim does not survive plain error review, we need

not address the question of extraordinary circumstances.




     3
       United States v. Jaquez-Tenorio, No. 04-50439, 111 Fed.
Appx. 318 (5th Cir. October 21, 2004) (unpublished opinion).
     4
         United States v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).
     5
         Id.
     6
         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.”7       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.”8            Since Booker, sentencing

under mandatory Guidelines (1) constitutes error, and (2) that

error is plain.9      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.’”10        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.11

B.   Merits

     In his supplemental letter brief, Jaquez-Tenorio 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


     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. Dominguez Benitez, 542 U.S.
74 (2004)).
     11
          Id. at 522.

                                       4
Guidelines scheme.          Instead, Jaquez-Tenorio calls to our attention

“mitigating circumstances surrounding [his] illegal reentry offense

that support a finding of a reasonable likelihood of a lower

sentence.”        He invites us to draw the conclusion that it was

“[a]pparently due to these mitigating circumstances [that] the

court       imposed   [a]   sentence   at    the    bottom   of   the    calculated

guideline sentence range.”

       In United States v. Bringier, we held 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.”12

In    his    supplemental     letter   brief,      Jaquez-Tenorio       attempts   to

distinguish Bringier from his case based on factual differences.

But these differences —— for example, that Bringier was a “large-

scale drug trafficker” while Jaquez-Tenorio was “an illegal alien

who merely crossed the border” —— have no bearing whatsoever on the

question whether we may infer from a Guideline-minimum sentence

that the defendant 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 Jaquez-Tenorio’s 27 months’.                Yet, in neither case may we

conclude that the district court would have imposed a lesser

sentence under an advisory scheme.                 Jaquez-Tenorio’s attempt to


       12
       405 F.3d 310, 318 n.4 (5th Cir. 2005) (citing Mares, 402
F.3d at 521-22).

                                         5
distinguish Bringier is simply unconvincing.               As he fails to

demonstrate from the record that his sentence would have been

significantly different under an advisory Guidelines scheme, he has

not carried his burden to establish error affecting substantial

rights.

      Jaquez-Tenorio    next   expresses     his    disagreement   with   our

application of the plain error standard, as articulated in Mares,

in order to preserve a challenge for possible Supreme Court review.

Mares is the settled law of this circuit, however, and we may

revisit it only en banc or following a Supreme Court decision that

effectively overturns it.

      As Jaquez-Tenorio has failed to satisfy plain error review, we

do not reach his argument that error in his sentencing seriously

affected the fairness, integrity and public reputation of the

proceedings.

                           III.   CONCLUSION

      As there exist no extraordinary circumstances or other grounds

for     relief,   Jaquez-Tenorio’s       sentence    is   AFFIRMED.       The

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

moot.




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