United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS March 6, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 04-50484 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

RAMON RAMIREZ-VIRUETE, also known as Reymundo Sanchez-Solis,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas, El Paso (No. 3:03-CR-2103-ALL) - - - - - - - - - -

Before JONES, Chief Judge, and 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 Ramon Ramirez-Viruete’s sentence.

I. BACKGROUND

Ramirez-Viruete pleaded guilty to reentering the United States

illegally following removal, in violation of

, an

offense that is punishable by up to two years imprisonment. At his

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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). sentencing —— which occurred prior to Booker —— the district court

increased Ramirez-Viruete’s offense level under the then-mandatory

Sentencing Guidelines by eight levels, because he had a prior

aggravated felony conviction. The court then sentenced Ramirez-

Viruete to 30 months imprisonment. Ramirez-Viruete appealed his

sentence, arguing that it violated the Fifth Amendment’s Due

Process Clause. After we affirmed in an unpublished opinion,2

Ramirez-Viruete petitioned the Supreme Court for a writ of

certiorari, asserting his Booker claim for the first time. The

Supreme Court vacated our judgment and remanded to us for

reconsideration in light of Booker.3 We again affirm Ramirez-

Viruete’s sentence

II. DISCUSSION

A. Standard of Review

Ramirez-Viruete raised his Booker claim for the first time in

his petition for a writ of 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, Ramirez-Viruete cannot

2 United States v. Ramirez-Viruete, No. 04-50484,

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

(2005). 4 United States v. Taylor,

(5th Cir. 2005). 5

2 meet the requirements of plain error review, he certainly cannot

satisfy the requirements of extraordinary circumstances review.

So, despite the fact that Ramirez-Viruete argues that the

extraordinary circumstances standard is inapplicable in this case

for a variety of reasons, because —— as Ramirez-Viruete concedes ——

he cannot meet the lower plain error standard, we need not address

his arguments.

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 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.”7 Under Booker, a district

court’s sentencing of a defendant under mandatory Sentencing

Guidelines (1) constitutes error that (2) is plain.8 Whether the

error affects substantial rights is a more complex inquiry for

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.’”9 That may be

shown, in turn, by the defendant’s “demonstrat[ing] a probability

6 United States v. Cotton,

(2002). 7

8 United States v. Mares,

(5th Cir. 2005). 9

(quoting United States v. Olano,

(1993)).

3 ‘sufficient to undermine confidence in the outcome.’”10 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.”11

B. Merits

In his supplemental letter brief, Ramirez-Viruete concedes

that “Mares appears to foreclose [his] plain-error claim in this

circuit.” Specifically, Ramirez-Viruete 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 preserves a challenge to

the standard of review we adopted in Mares, arguing that in

Mares we got it wrong and the plain error standard employed by

other courts (the Sixth Circuit, for example12) 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. Accordingly, we affirm the

sentence imposed by the district court below.

III. CONCLUSION

As there exist no extraordinary circumstances or other grounds

for relief, Ramirez-Viruete’s sentence is affirmed. We therefore

10

(quoting United States v. Dominguez Benitez,

(2004)). 11

12 See, e.g., United States v. Barnett,

(6th Cir. 2005).

4 need not address the government’s pending Motion to Reinstate Prior

Affirmance of Appellant’s Conviction and Sentence in Lieu of Filing

Supplemental Booker Brief.

AFFIRMED; motion DENIED as unnecessary.

5