                                                        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. 04-40144
                         Conference Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,
versus

MANUELA DELAROSA CIVIL, also known as
Manuela Delarosa Martinez,

                                          Defendant-Appellant.


                         - - - - - - - - - -
            Appeal from the United States District Court
                  for the Eastern District of Texas
                         (No. 1:03-CR-141-1)
                         - - - - - - - - - -
           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 Manuela Delarosa Civil’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this opinion should not be published and is not precedent except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

      Civil pled guilty to and was convicted of possession with

intent to distribute methamphetamine, in violation of 21 U.S.C. §

841(a)(1).       Her base offense level under § 2D1.1(c)(6) of the

Sentencing     Guidelines    was    28,      based    on      the    quantity    of

methamphetamine involved.        Her offense level was then increased by

two levels pursuant to USSG § 2D1.1(b)(3), based on a finding by

the   district    court   that   the    object   of     the    offense    was    the

distribution of a controlled substance in a federal prison.                  Civil

met the stringent criteria for the safety valve exception of USSG

§ 5C1.2 and thereunder received a two-level reduction.                    Finally,

Civil     received   a    three-level       reduction      for      acceptance   of

responsibility, under USSG § 3E1.1, resulting in a total offense

level of 25.     With a criminal history category of I, the applicable

guideline range for imprisonment was 57-71 months, and the district

court sentenced Civil to 57 months’ imprisonment.                     Although the

district court sentenced Civil to the minimum Guidelines sentence,

it made no statement whatsoever concerning whether it would be

inclined to impose a lesser sentence under an advisory sentencing

scheme.

      Civil appealed her conviction and sentence, arguing that she

was erroneously denied a downward adjustment to her sentence under

USSG § 3B1.2(b) based on her minor role in the offense.                           We

affirmed in an unpublished opinion, upholding the district court’s

finding that Civil was in fact a key participant in the drug



                                        2
trafficking transaction for which she was convicted.2               Civil then

petitioned     the   United   States       Supreme   Court    for   a   writ   of

certiorari. 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

     Civil raised her Booker claim for the first time in her

petition for certiorari.      Therefore, we will not review her 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 her Booker claim

for the first time on appeal.4         Therefore, if a defendant cannot

satisfy the plain error standard, she certainly cannot satisfy the

extraordinary circumstances standard.5           As Civil’s claim does not

survive plain error review, we need not address the question of

extraordinary circumstances.


     2
       United States v. Civil, No. 04-40144, 112 Fed. Appx. 968
(5th Cir. October 20, 2004) (unpublished opinion).
     3
       United States v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).
In their supplemental letter briefs the parties both state that
plain error is the appropriate standard of review; we disagree.
See United States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir. 1992)
(en banc) (“A reviewing court may reject both parties’ approach to
the standard [of review;] ... [i]f neither party suggests the
appropriate standard, the reviewing court must determine the proper
standard on its own ....”) (citations omitted). In any event, as
discussed below Civil does not satisfy even plain error review.
     4
         Taylor, 409 F.3d at 676.
     5
         Id.
                                       3
     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 (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.          She    carries    her    burden     if   she   can   “demonstrate      a

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

The defendant demonstrates such a probability when she 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 her supplemental letter brief, Civil concedes that there

are no statements by the district court in the record indicating

that it would have sentenced her differently under an advisory

Guidelines scheme.           Instead, Civil calls to our attention the fact


     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. Dominguez Benitez, 542 U.S. 74
(2004)).
     10
          Id. at 522.
                                             4
that the district court imposed only the minimum sentence under the

Guidelines.     However, we have 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      Civil thus

fails to demonstrate from the record that her sentence would have

been significantly different under an advisory Guidelines scheme,

and she therefore has not carried her burden to establish error

affecting substantial rights.

     Civil next argues that she should not be required to carry

this burden at all, because Booker error is (1) structural and (2)

presumptively prejudicial.    We have specifically rejected both of

these contentions.12 Civil further urges us to abandon our approach

under Mares and instead apply the law of the Fourth,13 Sixth14 and

Ninth15 Circuits.     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.



     11
       United States v. Bringier, 405 F.3d 310, 318 n.4 (5th Cir.
2005) (citing Mares, 402 F.3d at 521-22).
     12
       See United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th
Cir. 2005) (rejecting structural error argument); United States v.
Arnold, 416 F.3d 349, 2005 WL 1546254 at *9 n.23 (5th Cir. 2005)
(rejecting both structural error and presumptive prejudice
arguments).
     13
          See United States v. Hughes, 396 F.3d 374 (4th Cir. 2005).
     14
          See United States v. Oliver, 397 F.3d 369 (6th Cir. 2005).
     15
       See United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005)
(en banc).
                                  5
     As Civil has failed to satisfy plain error review, we do not

reach her argument that error in her 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, Civil’s sentence is AFFIRMED.




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