                                                        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. 04-50535
                         Conference Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,
versus

FRANCISCO JESUS MARTINEZ-ALFARO, also
known as Francisco Rendon Martinez,

                                          Defendant-Appellant.


                         - - - - - - - - - -
            Appeal from the United States District Court
                  for the Western District of Texas
                          (5:03-CR-608-ALL)
                         - - - - - - - - - -
           ON REMAND FROM THE UNITED STATES SUPREME COURT

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

Francisco Martinez-Alfaro has submitted a supplemental letter brief

addressing the impact of Booker, to which the Government has

responded with a motion to reinstate our prior affirmance of his

conviction and sentence.    Martinez-Alfaro opposes the Government’s



     *
        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this opinion should not be published and is not precedent except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).
motion.      For the following reasons, we find that Booker does not

affect Martinez-Alfaro’s sentence.

                                 I.    BACKGROUND

      Martinez-Alfaro pled guilty to and was convicted of being in

the United States unlawfully following deportation, in violation of

8 U.S.C. § 1326.         This offense carries a maximum penalty of two

years’ imprisonment and one year of supervised release.            Martinez-

Alfaro had a prior conviction for aggravated sexual assault, which

under § 1326(b) triggered an increase in the statutory maximum term

of imprisonment and supervised release. The district court imposed

a sentence of 57 months’ imprisonment to be followed by three

years’      supervised   release.       Martinez-Alfaro    objected   to   the

sentence on the ground that it exceeded the statutory maximum,

which objection the district court overruled.

          Martinez-Alfaro appealed his conviction and sentence, arguing

that because the indictment did not state a § 1326(b) offense

because it did not allege a prior conviction, his sentence exceeded

the statutory maximum in violation of the Constitution.               In his

brief on appeal Martinez-Alfaro acknowledged that his arguments

were foreclosed by precedent, but raised them only to preserve them

for   possible    review    by   the    Supreme   Court.   We   affirmed   the

conviction and sentence in an unpublished opinion.2                Martinez-

Alfaro then petitioned the United States Supreme Court for a writ

of certiorari. After Booker was decided, Martinez-Alfaro submitted


      2
       United States v. Martinez-Alfaro, No. 04-50535, 110 Fed.
Appx. 430 (5th Cir. October 21, 2004) (unpublished opinion).

                                         2
a supplemental petition for certiorari in which he challenged his

mandatory Guideline sentence.        As noted above, the Supreme Court

vacated the    judgment    and    remanded   to   this   court    for   further

consideration in light of Booker.

                             II.    DISCUSSION

A.   Standard of Review

     Martinez-Alfaro raised his Booker claim for the first time in

his supplemental 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

defendant cannot satisfy the plain error standard, he certainly

cannot satisfy the extraordinary circumstances standard.5                   As

Martinez-Alfaro’s claim does not survive plain error review, we

need not address the question of extraordinary circumstances.

     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



     3
         United States v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).
     4
         Id.
     5
         Id.
     6
         United States v. Cotton, 535 U.S. 625, 631 (2002).

                                      3
reputation of judicial proceedings.”7             Since Booker, sentencing

under mandatory Guidelines (1) constitutes error, and (2) 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 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

     In his supplemental letter brief, Martinez-Alfaro concedes

that “the district court made no particular remarks disagreeing

with the requirements of the mandatory guidelines,” or otherwise

indicating that it would have sentenced him differently under an

advisory Guidelines scheme.         Instead, Martinez-Alfaro calls to our

attention       “mitigating   circumstances     surrounding      [his]    illegal

reentry offense that support a finding of a reasonable likelihood

of a lower sentence,” and notes after reviewing these mitigating

circumstances that the district court imposed the lowest Guideline

sentence.


     7
          Id.
     8
          United States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005).
     9
      Id. (quoting United States v. Dominguez Benitez, 542 U.S. 74
(2004)).
     10
          Id. at 522.

                                        4
      In United States v. Bringier, we held that “[t]he fact that

the   sentencing   judge    imposed   the     minimum   sentence    under   the

Guideline range ... alone is no indication that the judge would

have reached a different conclusion under an advisory scheme.”11

In his supplemental letter brief, Martinez-Alfaro attempts to

distinguish Bringier from his case based on factual differences.

But these differences —— for example, that Bringier was a “large-

scale drug trafficker” while Martinez-Alfaro was “an illegal alien

who merely crossed the border” —— have no bearing whatsoever on the

question whether we may infer from a Guideline-minimum sentence

that the defendant would have been sentenced differently under an

advisory scheme.    The significance of any factual differences is,

of course, borne out in the sentences imposed:                 Bringier was

sentenced to a Guideline-minimum 30 years’ imprisonment, compared

to Martinez-Alfaro’s 57 months’.            Yet, in neither case may we

conclude that the district court would have imposed a lesser

sentence under an advisory scheme.            Martinez-Alfaro’s attempt to

distinguish Bringier is simply unconvincing.               As he fails to

demonstrate from the record that his sentence would have been

significantly different under an advisory Guidelines scheme, he has

not carried his burden to establish error affecting substantial

rights.

      Martinez-Alfaro      next   expresses    his   disagreement    with   our

application of the plain error standard, as articulated in Mares,


      11
       405 F.3d 310, 318 n.4 (5th Cir. 2005) (citing Mares, 402
F.3d at 521-22).

                                      5
in order to preserve a challenge for possible Supreme Court review.

Mares is the settled law of this circuit, however, and we may

revisit it only en banc or following a Supreme Court decision that

effectively overturns it.

      As Martinez-Alfaro has failed to satisfy plain error review,

we do not reach his argument that error in his sentencing seriously

affected the fairness, integrity and public reputation of the

proceedings.

                           III.   CONCLUSION

      As there exist no extraordinary circumstances or other grounds

for     relief,   Martinez-Alfaro’s       sentence   is   AFFIRMED.   The

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

moot.




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