                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS           April 6, 2006
                        FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                            No. 04-50597
                         Conference Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,
versus

NOE MACIAS-ORTIZ, also known as
Noe Macias-Garcia, also known as
Gerardo Macias-Ortiz

                                          Defendant-Appellant.


                           - - - - - - - - - -
             Appeal from the United States District Court
                   for the Western District of Texas
                          (5:04-CR-318-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 Noe

Macias-Ortiz 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.    Macias-Ortiz opposes the Government’s motion.      For 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this opinion should not be published and is not precedent except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).
following reasons, we find that Booker does not affect Macias-

Ortiz’s sentence.

                                I.     BACKGROUND

       Macias-Ortiz 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.          Macias-Ortiz had a prior felony conviction

for drug trafficking, which under § 1326(b) triggered an increase

in the statutory maximum term of imprisonment.            The district court

imposed a sentence of 57 months’ imprisonment.                    Macias-Ortiz

objected to the sentence on the ground that it exceeded the

statutory maximum, which objection the district court overruled.

           Macias-Ortiz 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 his constitutional due

process rights.        In his brief on appeal Macias-Ortiz acknowledged

that his arguments were foreclosed by precedent, but raised them

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

affirmed the conviction and sentence in an unpublished opinion.2

Macias-Ortiz then petitioned the United States Supreme Court for a

writ       of   certiorari.    After    Booker   was   decided,   Macias-Ortiz

submitted a supplemental petition for certiorari in which he

challenged his mandatory Guideline sentence.             As noted above, the


       2
       United States v. Macias-Ortiz, No. 04-50597, 110 Fed. Appx.
427 (5th Cir. October 21, 2004) (unpublished opinion).
                                         2
Supreme Court vacated the judgment and remanded to this court for

further consideration in light of Booker.

                           II.   DISCUSSION

A.   Standard of Review

     Macias-Ortiz 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

Macias-Ortiz’s claim does not survive plain error review, we need

not address the question of extraordinary circumstances.

     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

     3
         United States v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).
     4
         Id.
     5
         Id.
     6
         United States v. Cotton, 535 U.S. 625, 631 (2002).
     7
         Id.
                                   3
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, Macias-Ortiz concedes that

“the district judge made no particular remarks disagreeing with the

requirements of the mandatory guidelines,” or otherwise indicating

that she would have sentenced him differently under an advisory

Guidelines      scheme.       Instead,   Macias-Ortiz    suggests     that   “the

circumstances      of   the   case,   particularly    the   district    court’s

imposition of the lowest possible guideline sentence, support a

reasonable probability that a lower sentence would have been

imposed under an advisory guideline regime.”

     As Macias-Ortiz acknowledges in his letter brief, in United

States v. Bringier11 we flatly rejected this same argument. We held

that “[t]he fact that the sentencing judge imposed the minimum


     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.
     11
          405 F.3d 310 (5th Cir. 2005).
                                         4
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, however,

Macias-Ortiz 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 Macias-Ortiz 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 Macias-Ortiz’s 57 months’.                    Yet, in

neither case may we conclude that the district court would have

imposed a lesser sentence under an advisory scheme. Macias-Ortiz’s

attempt to 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.

      Macias-Ortiz     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.

He urges us to abandon our approach and instead apply that of the



      12
           405 F.3d at 318 n.4 (citing Mares, 402 F.3d at 521-22).
                                        5
Fourth Circuit.13     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 Macias-Ortiz 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, Macias-Ortiz’s sentence is AFFIRMED.   The Government’s

motion to reinstate our prior affirmance is DENIED as moot.




     13
          See United States v. Hughes, 401 F.3d 540, 555 (4th Cir.
2005).
                                  6
