                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS          March 6, 2006
                        FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                            No. 04-50615
                          Summary Calendar



UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,
versus

HECTOR AVILA-FERNANDEZ, also known as Juan Antonio Mata,

                                               Defendant-Appellant.


                         - - - - - - - - - -
            Appeal from the United States District Court
             for the Western District of Texas, El Paso
                      (No. 3:04-CR-324-ALL-KC)
                         - - - - - - - - - -

Before JONES, Chief Judge, and JOLLY and WIENER, Circuit Judges.

PER CURIAM:*

     This matter is before us on remand from the Supreme Court for

reconsideration in light of its recent opinion in United States v.

Booker.1   At our request, the parties have commented on the impact

of Booker. For the following reasons, we conclude that Booker does

not affect Defendant-Appellant Hector Avila-Fernandez’s sentence.

                            I.   BACKGROUND

     Avila-Fernandez pleaded guilty to reentering the United States

illegally following removal, in violation of 8 U.S.C. § 1326, an

offense that is punishable by up to two years imprisonment.       At his

     *
       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this opinion should not be published and is not precedent except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).
sentencing —— which occurred prior to Booker —— the district court

increased Avila-Fernandez’s offense level under the then-mandatory

Sentencing       Guidelines   by   16    levels,    because   he    had   a   prior

aggravated felony conviction.           Following the Guidelines, the court

sentenced       Avila-Fernandez    to    46    months   imprisonment.         Avila-

Fernandez then appealed his sentence, arguing that it violated the

Fifth Amendment’s Due Process Clause.                After we affirmed in an

unpublished opinion,2 Avila-Fernandez petitioned the Supreme Court

for a writ of certiorari, asserting his Booker claim for the first

time.     The Supreme Court vacated our judgment and remanded to us

for reconsideration in light of Booker.3                We again affirm Avila-

Fernandez’s sentence.

                                 II.    DISCUSSION

A.    Standard of Review

      Avila-Fernandez raised his Booker claim for the first time in

his petition for a writ of certiorari.               We will therefore review

his     Booker    claim   only     in    the    presence    of     “extraordinary

circumstances.”4      Although we have yet to flesh out the contours of

precisely what constitutes “extraordinary circumstances,” we know

that the extraordinary circumstances standard is more onerous than

the plain error standard.5         If, therefore, Avila-Fernandez cannot


      2
       United States v. Avila-Fernandez, No. 04-50615, 111 Fed.
Appx. 328 (5th Cir. 2004).
      3
          Alfaro v. United States, —— U.S. ——, 125 S. Ct. 1422 (2005).
      4
          United States v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).
      5
          Id.

                                          2
meet the requirements of plain error review, he certainly cannot

satisfy the requirements of extraordinary circumstances review.

So,   despite    the     fact    that   Avila-Fernandez    argues     that   the

extraordinary circumstances standard is inapplicable in this case

for a variety of reasons, because —— as Avila-Fernandez concedes ——

he cannot meet even the lower plain error standard, we need not

address his arguments.

      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 in a case meet all

three criteria, we may exercise our discretion to notice the error

only if it “seriously affects the fairness, integrity, or public

reputation of judicial proceedings.”7             Under Booker, a district

court’s     sentencing    of    a   defendant   under   mandatory    Sentencing

Guidelines (1) constitutes error that (2) is plain.8                Whether the

error affects substantial rights is a more complex inquiry for

which the defendant bears the burden of proof.            He will carry this

burden only if he can “show[] that the error ‘must have affected

the outcome of the district court proceedings.’”9                   That may be

shown, in turn, by the defendant’s “demonstrat[ing] a probability




      6
          United States v. Cotton, 535 U.S. 625, 631 (2002).
      7
          Id.
      8
          United States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005).
      9
       Id. (quoting United States v. Olano, 507 U.S. 725, 734
(1993)).

                                         3
‘sufficient       to   undermine   confidence   in   the   outcome.’”10   To

demonstrate such a probability, the defendant must identify in the

record an indication that the “sentencing judge —— sentencing under

an advisory [Guidelines] scheme rather than a mandatory one ——

would have reached a significantly different result.”11

B.   Merits

     In his supplemental letter brief, Avila-Fernandez concedes

that “Mares appears to foreclose [his] plain-error claim in this

circuit.”       Specifically, Avila-Fernandez 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 preserves a challenge to

the standard of review we adopted in Mares, arguing that in

Mares we got it wrong and the plain error standard employed by

other courts (the Sixth Circuit, for example12) gets it right.

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

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

actually or effectively overturns it.           Accordingly, we affirm the

sentence imposed by the district court below.




     10
       Id. (quoting United States v. Dominguez Benitez, 542 U.S.
74 (2004)).
     11
          Id.
     12
          See, e.g., United States v. Barnett, 398 F.3d 516 (6th Cir.
2005).

                                       4
                           III.   CONCLUSION

      As there exist no extraordinary circumstances or other grounds

for     relief,   Avila-Fernandez’s       sentence   is   AFFIRMED.   The

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

moot.




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