                                                        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. 04-40271
                          c/w No. 04-40279
                         Conference Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,
versus

JUAN BIRULA-HERNANDEZ,

                                          Defendant-Appellant.


                         - - - - - - - - - -
            Appeal from the United States District Court
                 for the Southern District of Texas
                       USDC No. 1:03-CR-820-ALL
                       USDC No. 1:04-CR-61-ALL
                         - - - - - - - - - -

Before JONES Chief Judge, and 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, the parties have

submitted supplemental letter briefs addressing the impact of

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

affect Defendant-Appellant Juan Birula-Hernandez’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this opinion should not be published and is not precedent except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

       In October 2003, Birula-Hernandez pleaded guilty to one count

of    illegal   reentry,     in   violation        of   8   U.S.C.   §    1326.    The

presentence report (PSR) calculated a total offense level of 13.

This, combined with a criminal history category of V, resulted in

a Guidelines imprisonment range of 30 to 37 months.                      The statutory

maximum sentence under 8 U.S.C. § 1326(a) was only 24 months,

however, and the PSR, pursuant to USSG § 5G1.1(a),2 adopted the

statutory maximum as the Guidelines range.                   In February 2004, the

district court accepted the PSR’s recommendations and sentenced

Birula-Hernandez to 24 months’ imprisonment to be followed by one

year of supervised release.

       On appeal, Birula-Hernandez challenged the constitutionality

of the illegal reentry statute but conceded that his claim was

foreclosed by precedent. Additionally, Blakely3 was decided during

the    pendency   of   the   appeal,        and    Birula-Hernandez        cited   that

decision as an alternative ground for reversal.                      We affirmed the

conviction and      sentence      in   an       unpublished    opinion.4      Birula-

Hernandez then petitioned the United States Supreme Court for a

writ of certiorari, and while his petition was pending the Supreme


       2
      USSG § 5G1.1(a) provides: “Where the statutorily authorized
maximum sentence is less than the minimum of the applicable
guideline range, the statutorily authorized maximum sentence shall
be the guideline sentence.”
       3
           Blakely v. Washington, 542 U.S. 296 (2004).
       4
      United States v. Birula-Hernandez, No. 04-40271, c/w No. 04-
40279, 111 Fed. Appx. 334 (5th Cir. Oct. 21, 2004) (unpublished
opinion).
                                            2
Court issued its decision in Booker.             Birula-Hernandez amended his

petition to include a Booker argument and, as noted above, the

Supreme     Court   vacated      the    judgment     and    remanded    to     us   for

reconsideration.

                                 II.    DISCUSSION

A.    Standard of Review

      Birula-Hernandez raised his Booker claim for the first time on

appeal.     Therefore, we review for plain error.5              This means that 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

constitutes (1) error (2) that 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


      5
          United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).
      6
          United States v. Cotton, 535 U.S. 625, 631 (2002).
      7
          Id.
      8
          Mares, 402 F.3d at 521.
      9
      Id. (quoting United States v. Dominguez Benitez, 542 U.S. 74
(2004)).
                                            3
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

       Birula-Hernandez satisfies the first two prongs of our plain

error review because his sentence resulted from application of the

Guidelines in their mandatory form.         He has not, however, met his

burden of showing that this error affected his substantial rights,

as required under Mares.      Indeed, in his supplemental letter brief

Birula-Hernandez concedes that “[b]ased on the current record ...

[he] admittedly cannot make such a showing of prejudice.”                   He

further expresses disagreement with the application of the plain

error standard to his case, but acknowledges that his challenge is

precluded by our holding in Mares.          He makes his argument only to

preserve it for further review. Birula-Hernandez also acknowledges

in his supplemental letter brief that his other arguments, that

Booker error is “structural” and presumptively prejudicial, are

likewise foreclosed by precedent.11          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.              As Birula-

Hernandez presents no viable ground for remand under Mares, we

affirm his sentence.



       10
            Id. at 522.
       11
       See United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th
Cir. 2005); United States v. Arnold, 416 F.3d 349, 2005 WL 1546254
at *9 n.23 (5th Cir. 2005).
                                        4
                         III.   CONCLUSION

     Birula-Hernandez   has   failed    to   satisfy   his   burden   of

demonstrating that the plain error at his sentencing affected his

substantial rights.   His sentence is

AFFIRMED.




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