                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                                                           F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                          November 7, 2005
                            FOR THE FIFTH CIRCUIT
                                                                        Charles R. Fulbruge III
                                                                                Clerk

                                 No. 04-51103




                           United States of America
                                               Plaintiff-Appellee,

                                      versus

                         Luis Carlos Talavera-Rosas
                                              Defendant-Appellant.



             Appeal from the United States District Court
                  For the Western District of Texas


                             ( 3:04-CR-1075-ALL )

Before REAVLEY, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

      Defendant-Appellant Luis Carlos Talavera-Rosas pled guilty to

an indictment charging that he illegally re-entered the United

States after having been deported in violation of 8 U.S.C. § 1326.

Prior to the entry of Talavera’s guilty plea, the government filed

a notice of intent to seek increased penalties under § 1326(b)(2),

which     provides   for    an   increased      penalty     when    removal        was

“subsequent    to    a   conviction    for     commission   of     an    aggravated




      *
       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should not be published and is not precedent except under the limited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.
felony.”1   The indictment did not allege a prior conviction, and

Talavera objected, citing Apprendi v. New Jersey,2 to any sentence

in excess of the maximum set out in § 1326(a), which the district

court overruled.

     At sentencing, Talavera argued that the prior conviction was

almost 14-years old and that it was his only drug trafficking

conviction.     As   the     sentencing   judge’s   statements   regarding

Talavera’s sentence are highly relevant in this case, they are

provided in full:

     [Y]ou know, I was looking at the age of the convictions
     and they are pretty old, but under the law they are still
     available for the reasons that they are being used in
     this case, and I think your lawyer pointed out every
     possible reason that this Court should consider going
     toward the bottom of the Guidelines, and certainly every
     one of them is a valid consideration.      You sometimes
     wonder if you can ever escape your past and, I guess, the
     United States Congress believes that under some
     circumstances, I guess, you can't.       Eventually [the
     convictions] would be old enough where they could not be
     scored, but the law is very, very strict. You now know
     that there are stiff consequences to returning in light
     of the history that you have, and maybe one of these days
     they will change and they will make a little bit more
     sense, but right now you need to always assume that they
     are not going to change for the better just because you
     want to protect against the very worst that might
     possibly occur.

The judge imposed a sentence of 57 months, with a three-year term

of supervised release, the lowest possible sentence under the




     1
      8 U.S.C. § 1326(b)(2).
     2
      530 U.S. 466 (2000).

                                     2
Guidelines.    Talavera timely filed a notice of appeal, and we have

jurisdiction pursuant to 28 U.S.C. § 1291.

      Talavera now argues that the district court erred when, in

light of United States v. Booker,3 it sentenced him under a

mandatory application of the United States Sentencing Guidelines.4

Talavera concedes that he is raising Booker error for the first

time on appeal; thus, his claim is reviewed for plain error.5

Likewise, the government concedes that the first two elements of

plain error are satisfied in this case: the district court plainly

erred in sentencing Talavera under the mandatory guidelines.6                The

issue for decision is whether Talavera can demonstrate that his

substantial rights were affected by the court’s error.7



      3
       125 S. Ct. 738 (2005).
      4
       To preserve the issue for Supreme Court review, Mendoza also challenges
the constitutionality of § 1326, but he correctly concedes that this argument is
foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). See, e.g., United States v. Alfraro, 408 F.3d 204, 210-
11 (5th Cir. 2005), cert. denied (Oct. 3, 2005) (No. 05-5604).

      5
       See United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005). Under
plain error review, this Court has “a limited power to correct errors that were
forfeited because [they were] not timely raised in the district court.” United
States v. Olano, 507 U.S. 725, 731 (1993). We may not correct an error that the
defendant failed to raise in the district court unless there is “(1) error, (2)
that is plain, and (3) that affects substantial rights.” Mares, 402 F.3d at 520
(citing United States v. Cotton, 535 U.S. 625, 631 (2002)).
      6
       Mares, 402 F.3d at 520-21 (finding that a sentence imposed under the
mandatory Sentencing Guidelines is plain error).
      7
        To make such a showing, Talavera “bears the burden of demonstrating a
probality sufficient to undermine confidence in the outcome.” United States v.
Bringier, 405 F.3d 310, 317 (5th Cir. 2005). Specifically, the question is
whether Talavera can demonstrate “that the sentencing judge would have reached
a different result had it sentenced [him] under an advisory scheme rather than
a mandatory one.” Id.

                                       3
      In     United    States     v.        Rodriguez-Gutierrez,       we     summarized

existing     case     law   and    found       two    primary   considerations         for

determining whether a district court’s Booker error affected a

defendant’s substantial rights.                    First, we consider whether the

judge made any statements during sentencing indicating that had the

Guidelines been merely advisory, the defendant would have received

a lower sentence.8          Second, we consider the relationship between

the sentence imposed and the applicable Guidelines range, noting

that “sentences falling at the absolute minimum of the Guidelines

provide the strongest support for the argument that the judge would

have imposed a lesser sentence.”9

      Here, both factors point toward a conclusion that Talavera’s

substantial rights were affected.                    During sentencing, the judge

stated, when considering Talavera’s prior conviction, that “the law

is   very,    very    strict”     and       that    the   “United    States   Congress”

believes that you “cannot escape your past.”                         In addition, the

judge expressed hope that the “stiff consequences” of returning to

the United States would one day “change” and “make a little bit

more sense.”     The judge also remarked that each reason provided by

Talavera’s      counsel      for        a     lower       sentence    was     a     “valid

consideration.”         Finally, the judge sentenced Talavera at the

bottom of the applicable range (here, 57 months).                                 Thus, we


      8
       United States v. Rodriguez-Gutierrez, ___ F.3d ___, 2005 WL 2447908, *1-2
(5th Cir. Oct. 5, 2005).
      9
       Id. at *2-3.

                                              4
conclude that Talavera has shown that the district court’s Booker

error affected his substantial rights.

      Accordingly,     exercising     our   discretion    under    plain-error

review,10 we REMAND to the district court to allow the district

court to resentence Talavera if, in its discretion under the now-

advisory Guidelines, it chooses to do so.




      10
       “If all three conditions [of plain error] are met an appellate court may
then exercise its discretion to notice a forfeited error but only if (4) the
error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Mares, 402 F.3d at 520 (citing Cotton, 525 U.S. at 631); see also
United States v. Dunn, No. 04-20100, 2005 WL 1847210, *2 (5th Cir. Aug. 3, 2005)
(“Because the error likely increased his sentence, Dunn has shown that the error
seriously affected the fairness, integrity, or public reputation of the judicial
proceedings.”).

                                       5
