                                                        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. 04-50570
                          Summary Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,
versus

JOSE JESUS GARCIA,

                                          Defendant-Appellant.


                          - - - - - - - - - -
            Appeal from the United States District Court
                  for the Western District of Texas
                       (No. 3:04-CR-373-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 Jose

Jesus Garcia has submitted a supplemental letter brief addressing

the impact of Booker.     The government has submitted a motion to

reinstate our prior affirmance of Garcia’s conviction and sentence,

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this opinion should not be published and is not precedent except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

     Garcia     pleaded       guilty   to     reentering    the    United    States

unlawfully following deportation.              Garcia appealed his conviction

and sentence, and we affirmed in an unpublished opinion.2                    Garcia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

     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    satisfy

extraordinary       circumstances      review.5        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




     2
      U.S. v. Garcia, No. 04-50570, 111 Fed. Appx 318 (5th Cir.
Oct. 21, 2004).
     3
      U.S. v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).
     4
      Id.
     5
      Id.

                                          2
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

B.   Merits

     In his supplemental letter brief, Garcia concedes that he

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

test. Specifically, Garcia is unable to point to any indication in

     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
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, Garcia’s sentence is AFFIRMED. The government’s motion

to reinstate our prior affirmance is DENIED as moot.




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