                                                        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this opinion should not be published and is not precedent except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


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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.




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