* 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this opinion should not be published and is not precedent except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).

United States Court of Appeals

Fifth Circuit

FILED

March 21, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-50454 

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID SANCHEZ-MORALES,

Defendant-Appellant.

- - - - - - - - - -

Appeal from the United States District Court

for the Western District of Texas

(No. 3:03-CR-1951-ALL-KC)

- - - - - - - - - -

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

David Sanchez-Morales has submitted a supplemental letter brief

addressing the impact of Booker. The government has submitted a

motion to reinstate our prior affirmance of Sanchez-Morales’s

conviction and sentence, which Sanchez-Morales opposes. 
2U.S. v. Sanchez-Morales, No. 04-50454, 111 Fed. Appx 316 (5th

Cir. Oct. 21, 2004).

3U.S. v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).

2

I. BACKGROUND

Sanchez-Morales pleaded guilty to reentering the United States

unlawfully following deportation, in violation of 8 U.S.C. § 1326.

According to Sanchez-Morales, he returned to the United States to

look for work. He has a wife, six children, and an elderly mother.

After he was arrested for illegal reentry, Sanchez-Morales alleges

that he suffered a significant physical injury. 

The district court increased Sanchez-Morales’s offense level

under the Guidelines because he had a prior felony drug conviction,

and the court ultimately sentenced him to 60 months imprisonment ——

three months above the bottom of the applicable Guidelines range.

Sanchez-Morales appealed his sentence, and we affirmed in an

unpublished opinion.2 Sanchez-Morales then obtained Supreme Court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

Sanchez-Morales 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
4Id.

5Id.

6U.S. v. Cotton, 535 U.S. 625, 631 (2002).

7Id.

8U.S. v. Mares, 402 F.3d 511, 521 (5th Cir. 2005).

9Id. (quoting U.S. v. Dominguez Benitez, 542 U.S. 74 (2004)).

3

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 Sanchez-Morales

argues that the extraordinary circumstances review is inapplicable

to his case for a variety of reasons. As his claim does not

survive the less stringent 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
10Id. at 522.

11U.S.S.G. § 5H1.2.

12Id. at § 5H1.4.

4

the record an indication that the sentencing judge would have

reached a significantly different result under an advisory

Guidelines scheme.10

B. Merits

Sanchez-Morales notes that the Guidelines discourage the

consideration of family factors and physical condition as grounds

for departure. This is relevant because Sanchez-Morales contends

that he presented sympathetic family circumstances and physical

condition at sentencing. Thus, Sanchez-Morales insists that a

sentencing judge would likely sentence him differently under an

advisory Guidelines scheme because of his special circumstances. 

At the outset, as Sanchez-Morales concedes, there is no

indication in the record that the district court would have

sentenced Sanchez-Morales differently. Moreover, even though 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 Likewise,

although physical condition is not “ordinarily” relevant in the

sentencing determination under the Guidelines, that section

explicitly provides that “extraordinary physical impairment may be

a reason to depart downward.”12 Furthermore, sentencing courts
13Mares, 402 F.3d at 518-19.

5

still must consider the Guidelines, even though they are no longer

mandatory.13 Ultimately, Sanchez-Morales’s argument that a

sentencing court would have sentenced him differently under an

advisory Guidelines scheme is unpersuasive. Accordingly, SanchezMorales fails to carry his burden under the third prong of the

plain error test. Concomitantly, Sanchez-Morales fails to

demonstrate that extraordinary circumstances entitle him to

resentencing. 

In the alternative, Sanchez-Morales 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 as imposed. 

III. CONCLUSION

As there exist no extraordinary circumstances or other grounds

for relief, Sanchez-Morales’s sentence is AFFIRMED. The

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

moot.