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. 04-50387 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

SAUL NAVARRO-MOLINA,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas, El Paso (3:03-CR-1901-ALL-KC) - - - - - - - - - -

Before JONES, Chief Judge, JOLLY and WIENER, Circuit Judges.

PER CURIAM:*

This matter is before us on remand from the Supreme Court for

reconsideration in light of its recent opinion in United States v.

Booker.1 At our request, the parties have commented on the impact

of Booker. For the following reasons, we conclude that Booker does

not affect Defendant-Appellant Saul Navarro-Molina’s sentence.

I. BACKGROUND

Navarro-Molina, a citizen of Mexico, pleaded guilty to and was

convicted of being in the United States illegally after removal, in

violation of

(a). Standing alone, a § 1326(a)

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. ——,

(2005). offense carries a maximum penalty of two years’ imprisonment and

one year of supervised release. Navarro-Molina’s § 1326(a)

offense, however, did not stand alone: Prior to his removal from

the United States, Navarro-Molina was convicted of an aggravated

felony, which, under

(b)(2), increased the maximum

penalty for his § 1326(a) offense to 20 years’ imprisonment and

three years’ supervised release. Navarro-Molina’s presentencing

report (“PSR”) recommended that he receive a total offense level

under the U.S. Sentencing Guidelines of 21, which included a 16-

level upward adjustment for his prior aggravated felony conviction,

and a 3-level downward adjustment for acceptance of responsibility

for his § 1326(a) offense. Combined with Navarro-Molina’s Criminal

History Category of III, his offense level of 21 resulted in a

Guidelines sentencing range of 46-57 months’ imprisonment. The

district court accepted the PSR’s recommendation and sentenced

Navarro-Molina at the bottom-end of the Guidelines sentencing

range, imposing a sentence of 46 months’ imprisonment. Navarro-

Molina objected to the sentence on the ground that it exceeded the

maximum authorized by § 1326(a), but the district court overruled

his objection.

Navarro-Molina then appealed his sentence to this court,

arguing that it exceeded the statutory maximum in violation of his

rights under the Fifth Amendment’s Due Process Clause because the

indictment charging him with a § 1326(a) violation did not

separately state a § 1326(b) offense. In his brief on appeal,

Navarro-Molina acknowledged that precedent foreclosed his argument,

2 but he raised it anyway to preserve possible Supreme Court review.

We affirmed the district court’s judgment in an unpublished

opinion.2 Navarro-Molina then petitioned the Supreme Court for a

writ of certiorari. After the Court handed down Booker, Navarro-

Molina filed a supplemental petition for certiorari with the Court

in which, for the first time, he raised a Booker challenge to his

mandatory Guidelines sentence. In response, the Supreme Court

granted Navarro-Molina’s petition, vacated our judgment affirming

his sentence, and remanded to us for reconsideration in light of

Booker.3 We again affirm Navarro-Molina’s sentence.

II. DISCUSSION

A. Standard of Review

Navarro-Molina raised his Booker claim for the first time in

his supplemental petition for certiorari. We will therefore

review his Booker claim only in the presence of “extraordinary

circumstances.”4 Although we have yet to flesh out the contours of

precisely what constitutes “extraordinary circumstances,” we know

that the extraordinary circumstances standard is more onerous than

the plain error standard.5 If, therefore, Navarro-Molina cannot

meet the requirements of plain error review, he certainly cannot

2 United States v. Navarro-Molina, No. 04-50387,

(5th Cir. October 21, 2004) (unpublished opinion). 3 Alfaro v. United States, —— U.S. ——,

(2005). 4 United States v. Taylor,

(5th Cir. 2005). 5

3 satisfy the requirements of extraordinary circumstances review.6

And Navarro-Molina cannot: He has failed to show, as is required by

plain error review, that the error in his case affected his

substantial rights. We therefore need not address whether

extraordinary circumstances exist.

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.”7 If the circumstances in a case meet all

three criteria, we may exercise our discretion to notice the error

only if it “seriously affects the fairness, integrity, or public

reputation of judicial proceedings.”8 Under Booker, a district

court’s sentencing of a defendant under the formerly-mandatory

Sentencing Guidelines (1) constitutes error (2) that is plain.9

Whether the error affects substantial rights is a more complex

inquiry in which the defendant bears the burden of proof. He will

carry this burden only if he can “show[] that the error ‘must have

affected the outcome of the district court proceedings.’”10 That

may be shown, in turn, by the defendant’s “demonstrat[ion of] a

probability ‘sufficient to undermine confidence in the outcome.’”11

6

7 United States v. Cotton,

(2002). 8

9 United States v. Mares,

(5th Cir. 2005). 10

(quoting United States v. Olano,

(1993)). 11

(quoting United States v. Dominguez Benitez,

(2004)).

4 To demonstrate such a probability, the defendant must identify in

the record an indication that the “sentencing judge —— sentencing

under an advisory [Guidelines] scheme rather than a mandatory one

—— would have reached a significantly different result.”12 By all

accounts, this burden is “difficult”13 —— but not impossible14 —— to

meet.

B. Merits

In measuring a defendant’s attempt to show that a plain error

affected his substantial rights, our decisions have considered “two

issues: first, whether the judge made any statements during

sentencing indicating that he would have imposed a lesser sentence

had he not considered the Guidelines mandatory; [and] second, the

relationship between the actual sentence imposed and the range of

sentences provided by the Guidelines.”15 Navarro-Molina does not

contend that the district court made any statements expressing a

preference for a lower sentence: In his brief on appeal he concedes

that “the district court made no particular remarks disagreeing

with the requirements of the mandatory guidelines,” or otherwise

indicating that it would have sentenced him differently under an

advisory Guidelines scheme. Instead, Navarro-Molina calls to our

12

13 United States v. Pennell,

(5th Cir. 2005); see also United States v. Rodriguez-Gutierrez,

(5th Cir. 2005) (“[T]he Supreme Court mandates that establishing [plain] error ‘should not be too easy.’”) (quoting United States v. Dominguez Benitez,

(2004)). 14 See Pennell,

. 15 Rodriguez-Gutierrez,

.

5 attention “mitigating circumstances” —— namely, the facts that he

returned to the United States to seek work, and that he requested

that the district court order him to undergo alcohol and drug

treatment —— “that support a finding of a reasonable likelihood of

a lower sentence.” In addition, Navarro-Molina argues that the

district court’s decision to impose the lowest term of imprisonment

permitted by his Guidelines sentencing range —— which Navarro-

Molina contends was “[a]pparently” based on “the[] mitigating

circumstances” surrounding his case —— indicates that the district

court would likely have imposed a different sentence under an

advisory set of Guidelines.

We hold that Navarro-Molina has not carried his burden of

showing that Booker error “‘affected the outcome of [his] district

court proceedings.’”16 First, under our decision in United States

v. Bringier, Navarro-Molina’s invocation of the district court’s

imposition of a sentence at the bottom of the Guidelines range is

not enough to carry his burden.17 And, contrary to Navarro-Molina’s

argument, Bringier is not distinguishable from this case. Navarro-

Molina contends that unlike the Bringier defendant, he presents

sufficient mitigating circumstances to raise a reasonable

likelihood that the district court would have imposed a lower

sentence under an advisory Guidelines scheme. But the differences

16 Mares,

(quoting Olano,

). 17 See United States v. Bringier,

, 318 N.4 (5th Cir. 2005) (reasoning that “[t]he fact that the sentencing judge imposed the minimum sentence under the Guideline range . . . alone is no indication that the judge would have reached a different conclusion under an advisory scheme.”).

6 between this case and Bringier —— for example, that Bringier was a

“large-scale drug trafficker” while Navarro-Molina is “an illegal

alien who merely crossed the border to find work” —— have no

bearing whatsoever on the question whether we may infer from a

Guideline-minimum sentence that Navarro-Molina would have been

sentenced differently under an advisory scheme. The significance

of any factual differences is, of course, borne out in the

sentences imposed: Bringier was sentenced to a Guideline-minimum

30 years’ imprisonment, compared to Navarro-Molina’s 46 months.

Yet, in neither case may we conclude that the district court would

have imposed a lesser sentence under an advisory scheme. Navarro-

Molina’s attempt to distinguish Bringier is simply unconvincing.

Second, Navarro-Molina contends that his mitigating

circumstances themselves raise a reasonable likelihood that the

district court would have imposed a lower sentence under an

advisory Guidelines scheme. “Despite the [district] court’s

demonstrated willingness to impose the lowest available sentence,”

contends Navarro-Molina, “it could not reduce [his sentence] below

46 months based on the most sympathetic circumstances of his case

[because, under the then-mandatory Guidelines,] Navarro’s drug and

alcohol problems were not grounds for departure.” This argument

misses the mark. All Navarro-Molina has done is raise the mere

possibility that, post-Booker, the district court would have

considered Navarro-Molina’s drug and alcohol problems as a reason

to impose a lower sentence. But he has not pointed us to any

indication in the record that the district court actually would

7 have done so had it been so empowered. Under Mares, a defendant

must do more than raise a mere possibility to carry his burden; he

must “‘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.’”18 Navarro-Molina therefore fails to carry his burden, and

thus fails to satisfy plain error review. We need not reach his

argument that the error in his sentencing seriously affected the

fairness, integrity and public reputation of the proceedings.

Finally, in a last-ditch effort, Navarro-Molina expresses

disagreement with the mechanics of Mares’s plain error standard.

He recognizes that Mares forecloses this argument, but he

nonetheless raises the point to preserve a challenge to Mares’s

articulation of the plain error standard of review, arguing that in

Mares we got it wrong, while the plain error standard employed by

other courts (the Sixth Circuit, for example19) gets it right.

Mares is the settled law of this circuit, however, and we may

revisit it only en banc or following a Supreme Court decision that

actually or effectively overturns it.20

18

(quoting United States v. Rodriguez,

(11th Cir. 2005)). 19 See, e.g., United States v. Barnett,

(6th Cir. 2005). 20 See Hogue v. Johnson,

(5th Cir. 1997).

8 Because Navarro-Molina cannot satisfy plain error review, he

does not present extraordinary circumstances entitling him to

resentencing. We affirm his sentence.

III. CONCLUSION

As there exist no extraordinary circumstances or other grounds

for relief, Navarro-Molina’s sentence is AFFIRMED. The

Government’s pending motions to reinstate our prior affirmance and,

in the alternative, to extend time to file its supplemental brief

are DENIED as moot.

9