                                                              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. 04-50519
                             Summary Calendar



UNITED STATES OF AMERICA,

                                               Plaintiff-Appellee,
versus

JORGE FRAUSTO-GARCIA,

                                               Defendant-Appellant.


                            - - - - - - - - - -
               Appeal from the United States District Court
                     for the Western District of Texas
                         (No. 3:03-CR-2300-ALL-DB)
                            - - - - - - - - - -

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

Jorge Frausto-Garcia has submitted a supplemental letter brief

addressing the impact of Booker.          The government has submitted a

motion    to   reinstate   our   prior   affirmance   of   Frausto-Garcia’s

conviction and sentence, which Frausto-Garcia opposes.




     *
        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this opinion should not be published and is not precedent except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

      Frausto-Garcia pleaded guilty to reentering the United States

unlawfully following deportation.             The district court increased

Frausto-Garcia’s offense level under the Guidelines because he

committed his reentry offense while on supervised release and less

than two years after being released from custody for a prior

offense.     Frausto-Garcia appealed his conviction and sentence, and

we   affirmed   in   an   unpublished       opinion.2   Frausto-Garcia     then

obtained Supreme Court review on the issues he raised on appeal and

on 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

      Frausto-Garcia 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

defendant cannot satisfy plain error review, he certainly cannot




      2
      U.S. v. Frausto-Garcia, No. 04-50519, 111 Fed. Appx 319 (5th
Cir. Oct. 21, 2004).
      3
       U.S. v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).
      4
       Id.

                                        2
satisfy extraordinary circumstances review.5 Frausto-Garcia 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 error, and 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 only 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

     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)).
     10
          Id. at 522.

                                          3
B.    Merits

      In his supplemental letter brief, Frausto-Garcia concedes that

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

test.     Specifically, Frausto-Garcia 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 may revisit it

only en banc or following a Supreme Court decision that effectively

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

                           III.    CONCLUSION

      As there exist no extraordinary circumstances or other grounds

for     relief,   Frausto-Garcia’s       sentence   is   AFFIRMED.   The

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

moot.




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