                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
                IN THE UNITED STATES COURT OF APPEALS             March 7, 2006
                        FOR THE FIFTH CIRCUIT
                                                             Charles R. Fulbruge III
                                                                     Clerk

                               No. 04-50594
                             Summary Calendar



UNITED STATES OF AMERICA,

                                               Plaintiff-Appellee,
versus

GUILLERMO HERNANDEZ-DE LA TORRE,

                                               Defendant-Appellant.


                          - - - - - - - - - -
            Appeal from the United States District Court
                  for the Western District of Texas
                         (No. 5:04-CR-55-ALL)
                          - - - - - - - - - -

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

Guillermo Hernandez-De la Torre has submitted a supplemental letter

brief    addressing   the   impact   of   Booker.   The   government     has

submitted a motion to reinstate our prior affirmance of Hernandez-

De la Torre’s conviction and sentence, which Hernandez-De la Torre

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this opinion should not be published and is not precedent except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

      Hernandez-De la Torre pleaded guilty to reentering the United

States unlawfully following deportation.             Hernandez-De la Torre

contends that he reentered the United States to help support his

disabled wife and minor child. In his brief, Hernandez-De la Torre

provides    us    with   some     background   personal   information   about

himself, including, inter alia, that he suffered a physical injury

in May 2000, and his physical injury prompted serious psychological

problems.

      The district court enhanced Hernandez-De la Torre’s sentence

on the basis that he committed his reentry offense while under a

prior criminal justice sentence.             Hernandez-De la Torre appealed

his conviction and sentence, and we affirmed in an unpublished

opinion.2 Hernandez-De la Torre 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

      Hernandez-De la Torre 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


      2
      U.S. v. Hernandez-De la Torre, No. 04-50594, 111 Fed. Appx
316 (5th Cir. Oct. 21, 2004).
      3
       U.S. v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).

                                         2
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 Hernandez-De la Torre

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

     4
      Id.
     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)).

                                    3
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, Hernandez-De la Torre points

to his family circumstances and his physical and psychological

condition as grounds for a downward departure. Hernandez-De la

Torre argues that because the Guidelines discourage considerations

such as family ties and physical and psychological condition, there

is a probability that the district court would have sentenced him

differently under an advisory Guidelines scheme.

     For openers, as Hernandez-De la Torre                  concedes, there is no

indication      in   the     record   that       the   district    court     would      have

sentenced him differently.               Moreover, Hernandez-De la Torre’s

argument is unpersuasive on its merits.                   Although the Guidelines

state that “family ties and responsibilities are not ordinarily

relevant in determining whether a departure may be warranted,” the

commentary      to    that     section    specifically          provides         that   the

sentencing court may take a family’s loss of financial support into

account in deciding to depart downward.11                  Similarly, although the

physical condition is not “ordinarily” relevant to the sentencing

determination        under     the    Guidelines,        that     section     explicitly

provides that “extraordinary physical impairment may be a reason to



     10
          Id. at 522.
     11
          U.S.S.G. § 5H1.2.

                                             4
depart downward.”12           As with physical condition, the defendant’s

mental      condition    is    typically       not   relevant    in     fashioning   a

sentence.13     The Guidelines do provide, however, that the court may

consider a mental condition that is present to “an exceptional

degree.”14     Furthermore, although the Guidelines are now advisory,

sentencing courts still must consider them.15                   Thus, Hernandez-De

la Torre’s argument that a sentencing court would have sentenced

him   differently        under     an    advisory         Guidelines      scheme     is

unpersuasive.       Accordingly, Hernandez-De la Torre fails to carry

his   burden     under   the     third   prong       of   the   plain    error   test.

Concomitantly, Hernandez-De la Torre fails to demonstrate that

extraordinary circumstances entitle him to resentencing.

      In the alternative, Hernandez-De la Torre 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

imposed below.



                                 III.    CONCLUSION



      12
           Id. at § 5H1.4.
      13
           Id. at § 5H1.3.
      14
           Id. at § 5K2.0(a)(4).
      15
           Mares, 402 F.3d at 518-19.

                                           5
     As there exist no extraordinary circumstances or other grounds

for relief, Hernandez-De la Torre’s sentence is AFFIRMED.      The

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

moot.




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