                                                         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. 03-20560
                           Summary Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,
versus

MANFRED KREUTER,

                                           Defendant-Appellant.


                          - - - - - - - - - -
             Appeal from the United States District Court
                  for the Southern District of Texas
                         (No. H-01-CR-618-ALL)
                          - - - - - - - - - -

Before 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 Manfred Kreuter’s sentence.



     *
       Judge Pickering was a member of the original panel that
heard this case, but he has since retired. This matter is being
handled by a quorum. 28 U.S.C. § 46(d).
     **
        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this opinion should not be published and is not precedent except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

     Kreuter     was   convicted     of     seven    counts     of    wire    fraud   in

violation of 18 U.S.C. § 1343 and money laundering in violation of

18 U.S.C. § 1957(a).       The district court sentenced Kreuter to 60

months    confinement,    to   be    followed        by   a   three-year      term    of

supervised     release.    The      court     also    imposed    an    $800    special

assessment and ordered Kreuter to pay $968,645.91 in restitution.

Kreuter appealed his conviction and sentence, and we affirmed in an

unpublished opinion.2      Kreuter 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

     Kreuter 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 the plain error standard, he certainly cannot satisfy the




     2
       United States v. Kreuter, No. 03-20560, 96 Fed. Appx. 950
(5th Cir. May 4, 2004).
     3
         United States v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).
     4
         Id.
                                          2
extraordinary circumstances standard.5 As Kreuter’s claim does not

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

extraordinary circumstances.

     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.     He carries his burden 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
          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.
                                         3
B.   Merits

     In    his   supplemental   letter   brief,   Kreuter    concedes   that

“[t]here is no dispute that [he] cannot under the present state of

the record scale the third and fourth components of a plain error

analysis let alone extraordinary circumstances under United States

v. Mares, ... the law [of] this Circuit.” Specifically, Kreuter 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.11      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.               Accordingly, we

affirm the sentence imposed below.

                           III.    CONCLUSION

     As there exist no extraordinary circumstances or other grounds

for relief, Kreuter’s sentence is AFFIRMED.




     11
          See, e.g., United States v. Hughes, 401 F.3d 540 (4th Cir.
2005).
                                    4
