                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                                                        F I L E D
                 IN THE UNITED STATES COURT OF APPEALS                  March 22, 2006
                         FOR THE FIFTH CIRCUIT
                                                                    Charles R. Fulbruge III
                                                                            Clerk

                                  No. 04-50418
                                Summary Calendar



UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,
versus

JOSE ANTONIO CONTRERAS-TERRAZAS,

                                                   Defendant-Appellant.


                          - - - - - - - - - -
            Appeal from the United States District Court
                  for the Western District of Texas
                       (No. 3:04-CR-165-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

Antonio Contreras-Terrazas has submitted a supplemental letter

brief    addressing   the      impact   of   Booker.       The   government     has

submitted    a   motion   to    reinstate    our   prior    affirmance     of   his

conviction and sentence, which Contreras-Terrazas opposes. For the

following reasons, we find that Booker does not affect Contreras-

Terrazas’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this opinion should not be published and is not precedent except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

     Contreras-Terrazas pleaded guilty to reentering the United

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

§ 1326(a).        The district court increased Contreras-Terrazas’s

offense     level   under    the    Guidelines    because    he   had    a    prior

aggravated felony conviction, and the court ultimately sentenced

him to 50 months imprisonment.               Contreras-Terrazas appealed his

conviction challenging the constitutionality of the statute under

which he was convicted.            We affirmed in an unpublished opinion.2

Contreras-Terrazas then obtained Supreme Court review on both his

conviction and 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

     Contreras-Terrazas 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

plain error review that we employ when a defendant has raised his

Booker claim for the first time on appeal.4                   Therefore, if a


     2
      U.S. v. Contreras-Terrazas, No. 04-50418, 110 Fed. Appx 450
(5th Cir. Oct. 21, 2004).
     3
      U.S. v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).
     4
      Id.

                                         2
defendant cannot satisfy plain error review, he certainly cannot

satisfy extraordinary circumstances review.5            Contreras-Terrazas

argues that the extraordinary circumstances review is inapplicable

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

survive 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 (1) error, and that error is

(2) plain.8   Whether the error affects substantial rights is a more

complex inquiry in which the defendant bears the burden of proof,

and 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




     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
reached      a   significantly   different   result   under   an   advisory

Guidelines scheme.10

B.    Merits

      In his supplemental letter brief, Contreras-Terrazas concedes

that he cannot carry his burden under the third prong of the plain

error test. Specifically, Contreras-Terrazas is unable to point to

any indication in the record that there is a probability that the

sentencing judge would have sentenced him differently under an

advisory Guidelines scheme.         Instead, he 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 can revisit it

only en banc or following a Supreme Court decision that effectively

overturns it.      Accordingly, we affirm the sentence imposed below.

                             III.    CONCLUSION

      As there exist no extraordinary circumstances or other grounds

for   relief,     Contreras-Terrazas’s    sentence    is   AFFIRMED.   The

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

moot.




      10
           Id. at 522.

                                      4
