                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS         March 15, 2006
                         FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk

                             No. 02-20702
                           Summary Calendar



UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,
versus


JERMAINE CARLOS DIAZ,

                                                Defendant-Appellant.


                          - - - - - - - - - -
             Appeal from the United States District Court
                  for the Southern District of Texas
                           (H-01-CR-528-ALL)
                          - - - - - - - - - -

Before JOLLY and WIENER, Circuit Judges.*

PER CURIAM:**

     This matter is before us on remand from the Supreme Court for

reconsideration in light of United States v. Booker.1             At our

request, the parties have commented on the impact of Booker.             We

conclude that Booker does not affect Defendant-Appellant Jermaine

Carlos Diaz’s (“Diaz”) sentence.




     *
        Judge Pickering was a member of the original panel that
heard this case, but he has since retired. This matter is being
handled by a quorum. 28 U.S.C. § 46(d).
     **
        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this opinion should not be published and is not precedent except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. 220 (2005).
                                I.   BACKGROUND

       In 2001, a federal grand jury returned indictments charging

Diaz   with   six    counts:   one   count   of   enticement     to   travel   in

interstate commerce for purposes of prostitution, in violation of

18   U.S.C.   §     2422(a);   one   count   of   transporting    a   minor    in

interstate commerce for purposes of prostitution, in violation of

18 U.S.C. § 2423(a); two counts of aiding and abetting violations

of 18 U.S.C. §§ 2422(a) and 2423(a); and two counts of misprision

of a felony, in violation of 18 U.S.C. § 4.           Diaz was acquitted on

four counts: The district court granted his motion for judgment of

acquittal on the two misprision counts; and the jury acquitted Diaz

on the enticement to travel in interstate commerce for purposes of

prostitution and aiding and abetting counts.               He was convicted,

however, of the remaining two counts —— transportation of a minor

in interstate commerce for purposes of prostitution and aiding and

abetting such transportation, in violation of 18 U.S.C. §§ 2423(a)

and 2.

       Following Diaz’s conviction, the Probation Office prepared a

Presentencing       Report   (“PSR”),   which,    under   the   then-mandatory

Sentencing Guidelines (“the Guidelines” or “USSG”), calculated his

offense level as 27, his criminal history category as II, and his

resulting sentencing range as 78-97 months’ imprisonment. In doing

so, the PSR started with a base offense level of 14, pursuant to

USSG § 2G1.1(a).        It increased that by four levels under USSG §

2G1.1(b)(1) to account for Diaz’s use of physical force, coercion,

or threats in the commission of his crime; by seven more levels


                                        2
under USSG § 2G1.1(b)(2)(B) to account for Diaz’s victim being

under the age of 16; and by another two levels under USSG § 3C1.1

to account for Diaz’s obstruction of justice.

     Diaz objected to these level increases.    He complained that

the increase for use of physical force, coercion, or threats was

not justified “because the jury specifically found the Defendant

Not Guilty of” enticement to travel in interstate commerce for

purposes of prostitution.    He objected to the obstruction-of-

justice increase because “[t]here was no testimony from [his

victim] that she had been influenced in any manner.”2     Finally,

Diaz urged that he was entitled to a level reduction for acceptance

of responsibility.

     The district court overruled each of Diaz’s objections, but

granted his request for a two-level reduction for acceptance of

responsibility, and granted another three-level reduction because

of Diaz’s young age at the time of his crime.    These adjustments

resulted in an offense level of 22, a criminal history category of

II, and a sentencing range of 46-57 months.     The district court

sentenced Diaz in the middle of that range, i.e., to 51 months’

imprisonment, as well as three years’ supervised release and a $100

special assessment.3


     2
       Diaz also objected to the enhancement for the age of his
victim, arguing that it was inappropriate because, although she was
under 16 at the time of his crime, she was older than he.
     3
       Bureau of Prisons records indicate that Diaz was released
from prison on November 26, 2004.      Because he remains under
supervised release, however, the end of his prison term did not
moot his appeal.

                                3
     Notably, when Diaz appealed his conviction to us, he did

not challenge his sentence or otherwise press the objections that

he had made to the district court regarding its imposition of

sentencing enhancements for obstruction-of-justice and the use of

force, coercion, or threats.         We affirmed his conviction in an

unpublished opinion.4     It was only in an amended petition to the

Supreme Court for a writ of certiorari that Diaz renewed his

objection    to   the   district    court’s    imposition   of   sentencing

enhancements for obstruction-of-justice and the use of force,

coercion, or threats.     In that amended petition, he contended that

under Blakely v. Washington,5 the district court’s reliance on

facts that were not proven to the jury beyond a reasonable doubt to

enhance his sentence violated his Sixth Amendment rights.          Shortly

thereafter, the Supreme Court handed down Booker, granted Diaz’s

amended petition for certiorari, and remanded this case to us for

further consideration.6     We once again affirm.

                              II.   ANALYSIS

A.   Standard of Review

     At the outset, the parties dispute our standard of review for

Diaz’s Booker claim.       Diaz contends that he is entitled to de

novo review of his claim because he “objected to the district

court’s judicial findings on the use of force, age of the victim,


     4
       United States v. Diaz, 95 Fed. Appx. 535 (5th Cir. Mar. 16,
2004) (unpublished per curiam opinion).
     5
         542 U.S. 296 (2004).
     6
         Diaz v. United States, 543 U.S. 1099 (2005).

                                      4
and obstruction of justice, and the enhancements based on those

findings.”   The government disagrees, arguing that plain error

review governs this case because “the [Booker] issue was not raised

in the court below.”

     Diaz is simply wrong: Although his objections in the district

court to the PSR’s sentencing enhancement recommendations may have

been sufficient to preserve his Booker claim for his first appeal,

he abandoned that claim by failing to assert it the first time his

case was before us.7    We are not as confident, however, about the

propriety of the government’s assertion that the plain error

standard   governs   this   case.   Our   decisions   are   legion   that

“extraordinary circumstances” review governs Booker claims raised

for the first time in a petition for a writ of certiorari.8          Diaz,

however, did not raise his Booker claim for the first time in his

cert petition; he took the unusual route of preserving his claim in

the district court, abandoning it before us, and then reasserting

it in the Supreme Court.      Legal niceties aside, however, whether

“extraordinary circumstances” or “plain error” review governs this

case is irrelevant: As Diaz cannot meet even the requirements of

plain error review, he certainly cannot meet the more onerous




     7
       See United States v. Lipscomb, 299 F.3d 303, 358-59 (5th
Cir. 2002).   Furthermore, even had he not abandoned his Booker
claim, he would not be entitled to de novo review; he would be
entitled to review under the harmless error standard. See, e.g.,
United States v. Saldana, 427 F.3d 298, 308 (5th Cir. 2005).
     8
       See, e.g., United States v. Taylor, 409 F.3d 675, 676 (5th
Cir. 2005).

                                    5
requirements      of   “extraordinary     circumstances”    review.9     We

therefore assume arguendo that the plain error standard governs

Diaz’s case.

     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.”10        If all three criteria are met, we may

exercise our discretion to notice the error only if it “seriously

affects the fairness, integrity, or public reputation of judicial

proceedings.”11    Under Booker, the district court’s enhancement of

Diaz’s sentence under mandatory Guidelines based on facts not

proven to the jury beyond a reasonable doubt (1) constitutes error

that (2) is plain.12       Whether the error affects substantial rights

is a more complex inquiry for which Diaz 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.’”13 That may be shown, in turn, by his “demonstrat[ion

of] a probability ‘sufficient to undermine confidence in the

outcome.’”14     In other words, Diaz must identify in the record an

indication that the “sentencing judge —— sentencing under an

     9
          See, e.g., id.
     10
          United States v. Cotton, 535 U.S. 625, 631 (2002).
     11
          Id.
     12
          United States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005).
     13
        Id. (quoting United States v. Olano, 507 U.S. 725, 734
(1993)).
     14
       Id. (quoting United States v. Dominguez Benitez, 542 U.S.
74 (2004)).

                                      6
advisory [Guidelines] scheme rather than a mandatory one —— would

have reached a significantly different result.”15

B.     Merits

       In his supplemental letter brief, Diaz makes no attempt to

cite    to    anything     in    the     record     indicating      that    there     is   a

probability that the sentencing judge would have sentenced him

differently under an advisory Guidelines scheme.                            Instead, he

argues that the Booker error in this case affected his substantial

rights “because         (1)     Booker      error   is   structural,        or   at   least

presumptively prejudicial; and (2), in any event, based on the

judge-made, preponderance-of-the-evidence findings, he received a

sentence greater than the maximum of the facts found by the jury.”

His first argument is foreclosed by our precedents16; his second

merely      states   the   error       in   this    case    that    is   plain    without

directing our attention to anything in the record indicating that

he would have received a significantly different sentence under an

advisory Guidelines scheme.

       In    essence,    Diaz     has    done     nothing    more    than    preserve      a

challenge to the standard of review we adopted in Mares, arguing

that in Mares we got it wrong, and that the plain error standard

employed by other courts 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


       15
            Id.
       16
       See, e.g., United States v. Martinez-Lugo, 411 F.3d 597, 601
(5th Cir. 2005).

                                              7
overturns it.   We therefore affirm the sentence imposed by the

district court below.

                         III.   CONCLUSION

     As Diaz cannot meet the requirements of plain error review or,

by extension, extraordinary circumstances review, his sentence is

AFFIRMED.




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