United States v. Navarro-Molina
United States v. Navarro-Molina
Opinion of the Court
This matter is before us on remand from the Supreme Court for reconsideration in light of its recent opinion in United States v. Booker.
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 8 U.S.C. § 1326(a). Standing alone, a § 1326(a) 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 8 U.S.C. § 1326(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, but he raised it anyway to preserve possible Supreme Court review. We affirmed the district court’s judgment in an unpublished opinion.
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.”
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.”
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
We hold that Navarro-Molina has not carried his burden of showing that Booker error “ ‘affected the outcome of [his] district court proceedings.’ ”
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.”
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 example
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.
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.
. 543 U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
. United States v. Navarro-Molina, 111 Fed. Appx. 321 (5th Cir. 2004) (unpublished opinion).
. Alfaro v. United States, 543 U.S. 1183, 125 S.Ct. 1422, 161 L.Ed.2d 182 (2005).
. United States v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).
. Id.
. Id.
. United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002).
. Id.
. United States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005).
. Id. (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct 1770, 123 L.Ed.2d 508 (1993)).
. Id. (quoting United States v. Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)).
. Id.
. United States v. Pennell, 409 F.3d 240, 245 (5th Cir. 2005); see also United States v. Rodriguez-Gutierrez, 428 F.3d 201, 203 (5th Cir. 2005) ("[T]he Supreme Court mandates that establishing [plain] error 'should not be too easy.’ ”) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)).
. See Pennell, 409 F.3d at 245.
. Rodriguez-Gutierrez, 428 F.3d at 203.
. Mares, 402 F,3d at 521 (quoting Olano, 507 U.S. at 734, 113 S.Ct. 1770).
. See United States v. Bringier, 405 F.3d 310, 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.”).
. 402 F.3d at 521 (quoting United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005)).
. See, e.g., United States v. Barnett, 398 F.3d 516 (6th Cir. 2005).
. See Hogue v. Johnson, 131 F.3d 466, 491 (5th Cir. 1997).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.