                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS         March 21, 2006
                        FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                            No. 04-50454
                          Summary Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,
versus

DAVID SANCHEZ-MORALES,

                                          Defendant-Appellant.


                         - - - - - - - - - -
            Appeal from the United States District Court
                  for the Western District of Texas
                      (No. 3:03-CR-1951-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

David Sanchez-Morales has submitted a supplemental letter brief

addressing the impact of Booker.     The government has submitted a

motion to reinstate our prior affirmance of Sanchez-Morales’s

conviction and sentence, which Sanchez-Morales opposes.




     *
        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this opinion should not be published and is not precedent except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

     Sanchez-Morales pleaded guilty to reentering the United States

unlawfully following deportation, in violation of 8 U.S.C. § 1326.

According to Sanchez-Morales, he returned to the United States to

look for work.    He has a wife, six children, and an elderly mother.

After he was arrested for illegal reentry, Sanchez-Morales alleges

that he suffered a significant physical injury.

     The district court increased Sanchez-Morales’s offense level

under the Guidelines because he had a prior felony drug conviction,

and the court ultimately sentenced him to 60 months imprisonment ——

three months above the bottom of the applicable Guidelines range.

Sanchez-Morales appealed his sentence, and we affirmed in an

unpublished opinion.2         Sanchez-Morales then obtained Supreme Court

review    on   the     issues     he    raised   on   appeal   and     on   the

constitutionality of his sentence under Booker.             As noted above,

the Supreme Court remanded to us for reconsideration in light of

Booker.

                                II.    DISCUSSION

A.   Standard of Review

     Sanchez-Morales raised his Booker claim for the first time in

his petition for certiorari.            Therefore, we will not review his

Booker    claim      absent     “extraordinary      circumstances.”3        The

extraordinary circumstances standard is more demanding than the


     2
      U.S. v. Sanchez-Morales, No. 04-50454, 111 Fed. Appx 316 (5th
Cir. Oct. 21, 2004).
     3
      U.S. v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).

                                         2
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 plain error review, he certainly cannot

satisfy     extraordinary   circumstances    review.5     Sanchez-Morales

argues that the extraordinary circumstances review is inapplicable

to his case for a variety of reasons.             As his claim does not

survive the less stringent plain error review, we need not address

his objections to the extraordinary circumstances standard.

     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

under mandatory Guidelines constitutes error, and 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 only if he can “demonstrate a probability

‘sufficient    to   undermine   confidence   in   the   outcome.’”9     The

defendant demonstrates such a probability when he identifies from

     4
      Id.
     5
      Id.
     6
      U.S. v. Cotton, 535 U.S. 625, 631 (2002).
     7
      Id.
     8
      U.S. v. Mares, 402 F.3d 511, 521 (5th Cir. 2005).
     9
      Id. (quoting U.S. v. Dominguez Benitez, 542 U.S. 74 (2004)).

                                    3
the record an indication that the sentencing judge would have

reached     a   significantly       different         result     under    an    advisory

Guidelines scheme.10

B.   Merits

     Sanchez-Morales        notes    that       the   Guidelines     discourage      the

consideration of family factors and physical condition as grounds

for departure.       This is relevant because Sanchez-Morales contends

that he presented sympathetic family circumstances and physical

condition at sentencing.            Thus, Sanchez-Morales insists that a

sentencing judge would likely sentence him differently under an

advisory Guidelines scheme because of his special circumstances.

     At the outset, as Sanchez-Morales concedes, there is no

indication      in   the   record   that        the   district    court    would    have

sentenced Sanchez-Morales differently.                 Moreover, even though the

Guidelines state that “family ties and responsibilities are not

ordinarily relevant in determining whether a departure may be

warranted,” the commentary to that section specifically provides

that the sentencing court may take a family’s loss of financial

support into account in deciding to depart downward.11                          Likewise,

although physical condition is not “ordinarily” relevant in the

sentencing      determination       under       the    Guidelines,       that    section

explicitly provides that “extraordinary physical impairment may be

a reason to depart downward.”12                 Furthermore, sentencing courts

     10
          Id. at 522.
     11
          U.S.S.G. § 5H1.2.
     12
          Id. at § 5H1.4.

                                            4
still must consider the Guidelines, even though they are no longer

mandatory.13         Ultimately,        Sanchez-Morales’s       argument    that     a

sentencing court would have sentenced him differently under an

advisory Guidelines scheme is unpersuasive.                Accordingly, Sanchez-

Morales fails to carry his burden under the third prong of the

plain      error    test.       Concomitantly,       Sanchez-Morales       fails    to

demonstrate        that     extraordinary       circumstances    entitle     him    to

resentencing.

      In the alternative, Sanchez-Morales urges us to abandon the

standard of review we adopted in Mares and instead apply the plain

error standard employed by, inter alia, the Fourth Circuit. Mares,

however, 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.       Accordingly, we affirm the sentence as imposed.

                                 III.    CONCLUSION

      As there exist no extraordinary circumstances or other grounds

for     relief,     Sanchez-Morales’s           sentence   is   AFFIRMED.          The

government’s motion to reinstate our prior affirmance is DENIED as

moot.




      13
           Mares, 402 F.3d at 518-19.

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