                                                          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. 04-40218
                         Conference Calendar



UNITED STATES OF AMERICA,

                                              Plaintiff-Appellee,
versus

REYES VILLASENOR-ARROYO,

                                              Defendant-Appellant.


                         - - - - - - - - - -
            Appeal from the United States District Court
                 for the Southern District of Texas
                        (No. L-03-CR-1560-1)
                         - - - - - - - - - -
           ON REMAND FROM THE UNITED STATES SUPREME COURT

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 Reyes Villasenor-Arroyo’s sentence.

                            I.   BACKGROUND




     *
        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this opinion should not be published and is not precedent except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).
     In October 2003, Villasenor-Arroyo pleaded guilty to being in

the United States unlawfully following deportation, in violation of

8 U.S.C. § 1326.    The district court increased Villasenor-Arroyo’s

offense level under the Guidelines because he had a prior felony

drug conviction.     With a three-level reduction for acceptance of

responsibility, Villasenor-Arroyo’s Guidelines range ultimately

called for 46-57 months imprisonment.

     The Presentence Investigation Report revealed that Villasenor-

Arroyo has lived most of his life in the United States, and that he

has six minor children who live in Texas and Wisconsin.             At his

sentencing hearing, Villasenor-Arroyo apologized for his crime and

explained that the only reason he returned to the United States was

to see his children.       The court was aware of Villasenor-Arroyo’s

family circumstances, and “appreciate[d] [that it is] a great

source    of   emotion   and   anguish.”    At   the   conclusion   of   the

sentencing hearing, the district court sentenced Villasenor-Arroyo

to 46 months imprisonment, a term at the low end of the Guidelines.

In imposing the sentence, the court explained that Villasenor-

Arroyo’s “record is a serious one.         I guess I think the low end,

sir, serves the necessary purpose.         It’s an awful lot of time any

way you look at it.       I really hope you will not come back, sir.

Your children will have to come to Mexico to visit you.”

         Villasenor-Arroyo appealed his conviction, challenging the

constitutionality of the statute under which he was convicted.            We




                                     2
affirmed his conviction in an unpublished opinion.2           Villasenor-

Arroyo then appealed to the United States Supreme Court, arguing

not only that his conviction is unconstitutional, but also that his

sentence is unconstitutional under Booker.           As noted above, the

Supreme Court remanded to us for reconsideration in light of

Booker.

                          II.    DISCUSSION

A.   Standard of Review

     Villasenor-Arroyo 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         We have yet to

delineate    specifically        what       constitutes     extraordinary

circumstances.    Instead,      we   have   simply   observed   that   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 plain error review, he certainly cannot

satisfy extraordinary circumstances review.5

     Under plain error review, we will not remand for resentencing

unless there is “(1) error, (2) that is plain, and (3) that affects




     2
      U.S. v. Villasenor-Arroyo, No. 04-40218, 110 Fed. Appx. 440
(5th Cir. Oct. 21, 2004).
     3
      U.S. v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).
     4
      Id.
     5
      Id.
                                     3
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

reached     a    significantly     different    result          under     an    advisory

Guidelines scheme.10

B.   Merits

     Villasenor-Arroyo contends that the district court would have

imposed a significantly different sentence on the basis of comments

that it made during his sentencing hearing.                       Specifically, he

points      to   the    court’s    empathy     for        his    family    situation.

Furthermore, he notes that the court recognized the harshness of

the sentence.         The court, however, prefaced its recognition with

the observation that          Villasenor-Arroyo’s “record is a serious

     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)).
     10
          Id. at 522.
                                         4
one,” and concluded that the sentence imposed “serves the necessary

purpose.”       Therefore, read in context, the court’s empathy and

other comments likely do not demonstrate a significant probability

that it would have sentenced Villasenor-Arroyo differently under an

advisory Guidelines scheme.11 Accordingly, Villasenor-Arroyo is not

entitled       to   relief   under    plain    error   review,    much   less

extraordinary circumstances review.

      In the alternative, Villasenor-Arroyo argues that Booker error

is structural, and that we should therefore remand for resentencing

on that ground.      This circuit, however, has determined that Booker

error is not structural.12           Villasenor-Arroyo also insists that

Booker error should be presumed prejudicial.             Again, this circuit

has   determined      that   Booker    error    should    not    be   presumed

prejudicial.13       Villasenor-Arroyo presents no viable ground for

remand.      Accordingly, we affirm his original sentence.

                              III.    CONCLUSION

      As there exist no extraordinary circumstances or other grounds

for relief, Villasenor-Arroyo’s sentence is

AFFIRMED.




      11
      Cf. U.S. v.Higginbotham, No. 04-50018, 137 Fed. Appx. 665
(5th Cir. June 20, 2005) (denying relief even though the sentencing
court observed the harshness of the sentence imposed because the
court’s comments did not necessarily reflect a view that the
sentence was itself unfair).
      12
      U.S. v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir. 2005);
U.S. v. Arnold, 416 F.3d 349 (5th Cir. 2005).
      13
           Arnold, 419 F.3d 349.
                                       5
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