                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 22, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 03-21055
                           Summary Calendar



     UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

          versus


     OSCAR HUMBERTO GARCIA-MEJIA,

                                          Defendant-Appellant.




           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. 4:02-CR-589-ALL


                   On Remand from the Supreme Court
                         of the United States



Before GARWOOD, JOLLY and CLEMENT, Circuit Judges.

PER CURIAM:*

     This case is now before us on remand from the Supreme Court.

On December 20, 2004, we affirmed appellant’s conviction and

sentence, U.S. v. Garcia-Mejia, 394 F.3d 396 (5th Cir. 2004), and



     *
      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opinion should not be published and is not precedent except under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.
by its June 6, 2005 order the Supreme Court granted appellant’s

petition for writ of certiorari, vacated our judgment and remanded

the case to this court “for further consideration in light of

United States v. Booker [125 S.Ct. 738 (2005)].”         Garcia-Mejia v.

United   States,   125   S.Ct.   2555    (2005).     Pursuant      to   our

instructions, the parties have filed with us briefs stating their

respective positions as to the appropriate action for this court to

take pursuant to the Supreme Court’s said remand order.

     Appellant,    represented   by     an   Assistant   Federal    Public

Defender, argues only that he is entitled to resentencing because

he was sentenced under a mandatory guidelines system rather than

the advisory guidelines system decreed by Booker, and that such

sentencing constitutes error under Booker which is now “plain.”1


     1
        Appellant does not contend that he was sentenced on the
basis of facts (or facts other than prior conviction(s)) neither
admitted by him nor found by a jury in violation of his Sixth
Amendment rights (nor by the court on a basis less than beyond a
reasonable doubt).    Nor does he contend that his sentence is
unreasonable.
     In his appeal to this court appellant, who pled guilty to
violation of 8 U.S.C. § 1326 and was sentenced to 77 months’
confinement under § 1326(b), contended (in addition to his primary,
and sole other, complaint directed to one of the terms of his
supervised release) that “[t]he ‘felony’ and ‘aggravated felony’
provisions of 8 U.S.C. § 1326(b)(1)& (2) are unconstitutional in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000), as it appears
that a majority of the members of the Court now believe that
Almendarez-Torres v. United States, 523 U.S. 224 (1998), was
wrongly decided.” Appellant conceded he had not raised any such
issue in the district court and also stated that “this issue is
foreclosed and is raised solely for possible Supreme Court review.”
We rejected this contention on the basis of our prior holding that
we “must follow Almendarez-Torres ‘unless and until the Supreme
Court itself determines to overrule it.’” 394 F.3d 396 at 399

                                   2
     Appellant was charged in a one count indictment with being an

alien who, having been previously excluded, deported and removed

from the United States after conviction of an aggravated felony,

was present in the United States without having obtained the

consent of the Attorney General for reapplication for admission,

contrary to 8 U.S.C. § 1326(a) and (b)(2).   Appellant, represented

by an Assistant Federal Public Defender, pleaded guilty (without a

plea agreement).    The   Presentence   Report   (PSR),   to   which   no



(quoting U.S. v. Dabit, 231 F.3d 979 at 984 (5th Cir. 2000)).
     In his petition for certiorari to the Supreme Court appellant,
through counsel, urged two points. His first point was that the
Supreme Court “should ‘GVR’ this case because . . . [petitioner]
was sentenced under the federal sentencing scheme mandated by 18
U.S.C. § 3553(b)(1) and the United States Sentencing Guidelines,
which this Court found in United States v. Booker . . . to be
facially unconstitutional.”    Under this point, appellant stated
that “this Court should ‘GVR this case so that the lower courts may
review it in light of Booker.” Appellant’s second point in his
certiorari petition states “This Court should overrule its prior
decision in Almendarez-Torres v. United States . . . .” Under this
point, appellant does not cite Booker and states “this Court should
grant certiorari . . . to reconsider the constitutional holding in
Almendarez-Torres.”
     The government filed a one and half page response to the
certiorari petition stating that “the appropriate disposition is to
grant certiorari, vacate the judgment of the court of appeals, and
remand the case for further consideration in light of Booker and
Fanfan.”
     We think it obvious that the Supreme Court’s June 6, 2005
order granting the writ, vacating our judgment and remanding to us
for reconsideration in light of Booker – an order commonly known as
a “GVR” – was not in response to the second point (that concerning
Almendarez-Torres) in the certiorari petition and that the remand
to this court does not contemplate our reconsideration of whether
we should depart from Almendarez-Torres. Nor does appellant make
any contention that our reconsideration should extend to whether we
should continue to follow Almendarez-Torres.


                                 3
objection was made and which so far as here relevant was adopted by

the district court, calculated the base offense level as eight

under U.S.S.G. § 2L1.2(a) and added a sixteen-level enhancement

pursuant   to    U.S.S.G.    §   2L1.2(b)(1)(A)   for   appellant’s      prior

aggravated      felony   conviction   for   burglary    of   a    habitation,

producing an offense level of twenty-four; a three-level reduction

for acceptance of responsibility resulted in an ultimate offense

level of twenty-one.        With a criminal history category of VI, the

guideline sentencing range was calculated as 77 to 96 months’

imprisonment.     No challenge is made to any of these determinations

or calculations (nor do we perceive any error therein).                    The

district   court    ultimately     sentenced    appellant    to   77   months’

imprisonment followed by a three year term of supervised release.

     In his appeal to this court appellant, represented by an

assistant Federal Public Defender, at no time raised any Booker-

related issue, and he concedes that the Booker issue he now seeks

relief on was raised for the first time in his petition to the

Supreme Court for writ of certiorari.          We have held, however, that

when an appellant, whose case has been remanded to us by the

Supreme Court in a GVR order for reconsideration in light of

Booker, “does not raise any Booker-related challenges to his

sentence until his petition for certiorari, we will not review his

claim absent extraordinary circumstances.”          United States v. Ogle,

___ F.3d ___, ___ (5th Cir., June 27, 2005, No. 03-60833, slip op.


                                      4
3003 at 3004); United States v. Taylor, 409 F.3d 675, 676 (5th Cir.

2005). “Even if appellant can satisfy the plain error test, he has

not met the even more exacting test required to show the presence

of extraordinary circumstances, which requires appellant to show a

‘possibility of injustice so grave as to warrant disregard of usual

procedural rules’.” Ogle, ___ F.3d at ___ (citation omitted).     See

also, e.g., United States v. Johnson, 718 F.2d 1312, 1325 n.23 (5th

Cir. 1983) (en banc).      Nothing of the kind is shown here.

     Moreover, although sentencing under a mandatory, as opposed to

an advisory, guidelines system constitutes error that is “plain,”

the third prong of the plain error rule requires that the appellant

must demonstrate that the error was prejudicial to him.         United

States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005).     This requires

that the appellant show “with a probability sufficient to undermine

confidence in the outcome, that if the judge had sentenced him

under an advisory regime rather than a mandatory one, he would have

received a lesser sentence.”      United States v. Infante, 404 F.3d

376, 395 (5th Cir. 2005).     Mere uncertainty on this score does not

suffice.   Mares at 521.    Likewise, the mere fact that the sentence

imposed was the guideline minimum does not suffice to satisfy the

required showing of prejudice. United States v. Martinez-Lugo, 411

F.3d 597, 601 (5th Cir. 2005); United States v. Creech, 408 F.3d

264, 271-72 (5th Cir. 2005); United States v. Holmes, 406 F.3d 337,




                                    5
362-66 (5th Cir. 2005).2

     Appellant’s prejudice argument focuses on certain of the

district court’s remarks at the sentencing hearing.      Prior to the

sentencing hearing, appellant filed a motion for downward departure

stating that since the government might not be filing a motion for

downward departure under U.S.S.G. § 5K1.1, delay in prosecution was

another ground the court could consider for reducing his sentence

under U.S.S.G. § 5K2.0.     At the initial stages of the sentencing

hearing, the government acknowledged that it was not filing a 5K1.1

downward   departure    motion   because,   although   appellant   had

cooperated and been forthcoming, the information furnished was too

remote to pursue.      The district court then remarked that it did

“not have the power” to “grant any K1.1's without a motion from the

Government and, therefore, that’s moot.”     Later in the sentencing

hearing, after arguments of counsel (including discussions, inter

alia, of appellant’s alternate request for downward departure) and

appellant’s allocution, the court stated

          “I, basically, have concluded that contrary to my
     initial inclination I would go to the bottom of the
     range, not the top of the range, because of the things
     that have been brought to my attention that have been
     under discussion here and in the motion. But I am not
     inclined to downward depart.



     2
         We reject appellant’s arguments that the error is
“structural” or, alternatively, must be presumed prejudicial. As
we held in Martinez-Lugo, 411 F.3d at 601, those arguments are
necessarily inconsistent with Mares and Infante and our many
decisions following them.

                                   6
     . . .

          Now with respect to the efforts to cooperate, the
     circumstances are clearly very unfortunate.          The
     Government might have been onto something with the
     Defendant had he remained not in custody. But the issues
     of cooperation are beyond the scope of this Court’s
     ability and power to address directly through any 5K1
     downward departures.

          With respect to my discretion, I do choose to
     exercise my discretion and I will do so by sentencing the
     Defendant at the bottom of the range.

          I can say to Mr. Garcia-Mejia that I considered the
     criminal history and the number of reentries and all of
     this stuff a big deal. And that it would have been that
     you would have gotten the top of the range but for your
     efforts to cooperate and the delay attending prosecution.
     But because of all these circumstances, I exercise my
     discretion and go to the bottom of the range.” (emphasis
     added).3

After imposing a 77 month sentence, the court closed the hearing

stating “the motion for Downward Departure is denied.”

     The record does not establish the reasonable probability that

the district court felt it had not adequately and appropriately

addressed    appellant’s   efforts   to   cooperate   and   the   delay   in

prosecution, as well as his other pleas for leniency, by reducing



     3
         The court also subsequently remarked:

     “I’ll recommend to the Government that if you can
     possibly convert some of this information that the
     Defendant has given you to a prosecution. It does sound
     like he has some valuable information. I don’t know the
     details, obviously. And I do encourage the government to
     use people like Mr. Mejia who is trying hard to help the
     Government and address crimes in or out of the prison
     that would make the place safer for the United States
     citizens.”

                                     7
his sentence by some 19 months below what the court felt he

otherwise should receive (with a criminal history category of VI

and multiple illegal reentries) or that the court desired to

sentence below 77 months but did not because it felt itself

precluded from doing so by the guidelines.

      Thus,   appellant      has    not    carried        his   burden    of   showing

prejudice under the third prong of the plain error test and hence

is not entitled to relief in any event.

      We   conclude   that    nothing          in   the   Supreme   Court’s     Booker

decision requires us to change our prior affirmance in this case.

We   therefore   reinstate         our    prior      judgment    herein    affirming

appellant’s conviction and sentence.

                                     AFFIRMED




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