                                                               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. 04-50579
                                Summary Calendar



UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,
versus

JOSE LUIS MIRANDA-MOYA,

                                                 Defendant-Appellant.


                             - - - - - - - - - -
               Appeal from the United States District Court
                     for the Western District of Texas
                            (3:04-CR-104-ALL-KC)
                             - - - - - - - - - -

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 Jose

Luis       Miranda-Moya   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.          Miranda-Moya opposes the Government’s

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

affect Miranda-Moya’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this opinion should not be published and is not precedent except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

       Miranda-Moya pled guilty to and was convicted of attempting to

enter the United States unlawfully after removal, in violation of

8 U.S.C. § 1326.         This offense carries a maximum penalty of two

years’ imprisonment.           At the time of his attempt to reenter the

United States, Miranda-Moya was on probation for a prior conviction

for a crime of violence, which under § 1326(b) triggered an

increase in the statutory maximum term of imprisonment.                         The

district court imposed a sentence of 46 months’ imprisonment.

Miranda-Moya        objected   to   the   sentence   on   the   ground   that    it

exceeded the statutory maximum, which objection the district court

overruled.

           Miranda-Moya 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 Miranda-Moya 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

Miranda-Moya then petitioned the United States Supreme Court for a

writ       of   certiorari.     After     Booker   was   decided,   Miranda-Moya

submitted a supplemental petition for certiorari in which he


       2
       United States v. Miranda-Moya, No. 04-50579, 110 Fed. Appx.
429 (5th Cir. October 21, 2004) (unpublished opinion).
                                           2
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

     Miranda-Moya 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

Miranda-Moya’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

     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
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, Miranda-Moya 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, Miranda-Moya 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

“apparently in light of these [mitigating] circumstances” that the

district court imposed the minimum Guidelines sentence.

      In United States v. Bringier, we held that “[t]he fact that

the   sentencing      judge   imposed   the   minimum   sentence     under   the


      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
Guideline range ... alone is no indication that the judge would

have reached a different conclusion under an advisory scheme.”11

In   his   supplemental   letter   brief,   Miranda-Moya   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 Miranda-Moya 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 Miranda-Moya’s 46 months’. Yet, in neither case may we conclude

that the district court would have imposed a lesser sentence under

an advisory scheme. Miranda-Moya’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.

      Miranda-Moya    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




      11
       405 F.3d 310, 318 n.4 (5th Cir. 2005) (citing Mares, 402
F.3d at 521-22).
                                    5
Fourth Circuit.12     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 Miranda-Moya 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, Miranda-Moya’s sentence is AFFIRMED.   The Government’s

motion to reinstate our prior affirmance is DENIED as moot.




     12
          See United States v. Hughes, 401 F.3d 540, 549 (4th Cir.
2005).
                                  6
