                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                     UNITED STATES COURT OF APPEALS
                          For the Fifth Circuit                     August 24, 2005

                                                                Charles R. Fulbruge III
                                                                        Clerk
                               No. 04-20151
                             Summary Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

VERSUS


AGUSTIN CARRILLO-BANUELOS,

                                          Defendant-Appellant.



            Appeal from the United States District Court
                 For the Southern District of Texas
                     (USDC No. 3:03-CR-236-ALL)


       ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

      On   March   21,   2005,   the   Supreme   Court   granted   Carrillo-

Banuelos’s petition for a writ of certiorari, vacated the prior

judgment of this court, and remanded this appeal to this court for

“consideration in light of United States v. Booker, 543 U.S.___ [,

125 S. Ct. 738] (2005).”     In its remand order the Supreme Court did

not specify which of the two      majority opinions set forth in Booker


  *
   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opinion should not be published and is not precedent except under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.
was the basis for its remand decision.             The Supreme Court did make

clear in its Booker decision that both opinions would be applicable

to all cases pending on direct review or not yet final as of

January 12, 2005.     See Booker, 125 S. Ct. at 769 (citing Griffith

v. Kentucky, 479 U.S. 314, 328 (1987)). Carrillo-Banuelos’s appeal

satisfies those conditions.

     In    his   original   appeal     to   this   court,   Carrillo-Banuelos

claimed three grounds of error: first, the erroneous imposition of

a prohibition regarding possession of a dangerous device in his

condition of supervised release; second, that the “felony” and

“aggravated felony” provisions of 8 U.S.C. § 1326 (b) (1) and (2)

are elements of the offense, not sentence enhancements, making

those provisions unconstitutional; and third, that his sentence

violated Blakely v. Washington, 542 U.S. 296 (2004), an argument he

conceded was     foreclosed      by   our   decision   in   United   States    v.

Pineiro, 377 F.3d 464, 473-75 (5th Cir. 2004). Because Carrillo-

Banuelos    failed   to   make   any    Booker-related      objection   in    the

district court, we review for plain error.

     Applying our plain error analysis, we conclude: (1) there was

error because the district court operated under a mandatory scheme

and not an advisory scheme; and (2) such error is now plain under

Johnson v. United States, 520 U.S. 461, 468 (1997)(holding it is

enough that error be plain at the time of appellate review).

However, under the third prong of our plain error methodology,

i.e., whether the error affects substantial rights, it is Carrillo-

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Banuelos’s burden to show that, but for the error of acting on the

premise that the Guidelines are mandatory and not advisory, the

district court would have made a different decision.              In United

States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005), we said that

“the pertinent question is whether [the defendant] demonstrated

that the sentencing judgeSSsentencing under an advisory scheme

rather than a mandatory oneSSwould have reached a significantly

different result.”      That is, the plain error standard places the

“burden of proof [on the defendant] and requires ‘the defendant to

show that the error actually did make a difference:                if it is

equally plausible that the error worked in favor of the defense,

the defendant loses; if the effect of the error is uncertain so

that we do not know which, if either, side it helped the defendant

loses.’” Id. (quoting United States v. Rodriguez, 398 F.3d 1291,

1300 (11th Cir. 2005)).

     As    the     district   judge       noted,   the   circumstances   of

Carrillo-Banuelos’s      previous     imprisonment       were   indisputably

“bizarre.”    Carrillo-Banuelos illegally entered the United States

in 1987.   He was convicted of delivery of a controlled substance in

1994 and sentenced to ten years’ probation.          Probation was revoked

upon his conviction for criminal mischief in 1996, and he was

imprisoned.      In January, 1998, Carrillo-Banuelos was deported.        In

October, 1998, he was arrested, in the United States, and charged

under state law with child endangerment and evading detention.           He



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was also charged under federal law with                illegal re-entry.

     At Carrillo-Banuelos’s state criminal trial, the jury reported

to the judge that it was deadlocked, at which point the judge gave

them an Allen charge.          Carrillo-Banuelos, in fear of an imminent,

unfavorable verdict, changed his plea to guilty.                         Immediately

thereafter,     the     jury     returned       a    verdict      of    not     guilty.

Carrillo-Banuelos’s attorney moved for a new trial.                           The state

court   granted       the   motion       soon       after.       Unfortunately—and

improbably—no one told the attorney or Carrillo-Banuelos that the

motion had been granted, and Carrillo-Banuelos sat in prison for

four-and-a-half       years—until       his   federal        criminal   trial—before

anyone realized that he had been granted a new trial.

     At the sentencing hearing for the instant case—the federal

illegal re-entry charge—the sentencing judge expressed dismay that

the judge's order had been overlooked: “I still do not get it.                        How

in the world did he end up still spending five years in prison?

How did that happen?”          She concluded: “That is just the weirdest

set of facts I have ever heard.               It's just bizarre that he would

end up being in jail and nobody bothered to let anybody know that

a new trial had been granted.            That’s just bizarre.”

     Due to this unusual circumstance, Judge Gilmore downwardly

departed from a Criminal History Category of VI to a Criminal

History Category of V.         She wrote in the statement of reasons: “The

Court   finds   a     departure    to    criminal       history    category       V   is



                                          4
warranted,        as      the     defendant’s       criminal       history    category

substantially over-represents the seriousness of the defendant’s

criminal history, pursuant to U.S.S.G. § 4A1.3(b).”                     Based on this

lower criminal history category, Carrillo-Banuelos's Guidelines

range      was     70–87        months.      Judge       Gilmore     then    sentenced

Carrillo-Banuelos to 70 months in prison.

      Mares suggests that non-verbal clues might aid the Court in

determining whether the appellant has established a “probability

‘sufficient to undermine confidence in the outcome’” that the

sentencing        judge    would     have   given    a    lower    sentence    if    the

Guidelines were discretionary.               United States v. Mares, 402 F.3d

511, 521 (5th Cir. 2005) (noting that “there is no indication in

the record from the sentencing judge's remarks or otherwise that

gives us any clue as to whether she would have reached a different

conclusion” (emphasis added)).              In this case, however, it is clear

that the sentencing judge did not feel constrained to the range to

which a dutiful application of the mandatory Sentencing Guidelines

committed        her.      Rather,    she   appropriately         remarked    that   the

circumstances were unusual, and downwardly departed accordingly.

We   are   not     persuaded       that   this   combination       of   factors—(1)    a

downward departure, (2) a sentence at the bottom of the new range,

and (3) a comment from the sentencing judge that the state criminal

proceedings were “bizarre”—satisfies the third prong of the plain

error test.         Carrillo-Banuelos has not shown that the sentence


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imposed by the district court violated his substantial rights.

     We conclude, therefore, that nothing in the Supreme Court’s

Booker decision requires us to change our prior affirmance in this

case. We therefore affirm the conviction and sentence as set by the

trial court.   AFFIRMED.




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