* Pursuant to 5 TH C IR

. R. 47.5, the court has determined tha t this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

November 7, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-51103

United States of America

Plaintiff-Appellee,

versus

Luis Carlos Talavera-Rosas

Defendant-Appellant.

Appeal from the United States District Court

For the Western District of Texas

( 3:04-CR-1075-ALL )

Before REAVLEY, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM: *

Defendant-Appellant Luis Carlos Talavera-Rosas pled guilty to

an indictment charging that he i llegally re-entered the United

States after having been deported in violation of 8 U.S.C. § 1326.

Prior to the entry of Talavera’s guilty plea, the government filed

a notice of intent to seek increased penalties under § 1326(b)(2),

which provid es for an increased penalty when removal was

“subsequent to a conviction for commission of an aggravated1 8 U.S.C. § 1326(b)(2).

2 530 U.S. 466 (2000).

2 f elony.” 1 The indictment did not allege a prior conviction, and

Talavera objected, citing Apprendi v. New Jersey

, 2 to any sentence

in excess of the maximum set out in § 1326(a), which the district

court overruled.

At sentencing, Talavera argued that the prior conviction was

almost 14-years old and that it was his only drug trafficking

conviction. As the sentencing judge’s statements regarding

Talavera’s sentence are highly relevant in this case, they are

provided in full:

[Y]ou know, I was looking at the age of the convictions

and they are pretty old, but under the law they are still

available for the reasons that they are being used in

this case, and I think your lawyer pointed out every

possible reason that this Court should consider going

toward the bottom of the Guidelines, and certainly every

one of them is a valid consideration. You sometimes

wonder if you can ever escape your past and, I guess, the

United States Congress believes that under some

circumstances, I guess, you can't . Eventually [the

convictions] would be old enough where they could not be

scored, but the law is very, very strict. You now know

that there are stiff consequences to returning in light

of the history that you have, and maybe one of these days

they will change and they will make a little bit more

sense, but right now you need to always assume that they

are not going to change for the better just because you

want to protect against the very worst that might

possibly occur.

The judge imposed a sentence of 57 months, with a three-year term

of supervised release, the lowest possible sentence under the3 125 S. Ct. 738 (2005).

4 To preserve the issue for Supreme Court review, Mendoza also challenges

the constitutionality of § 1326, but he correctly concedes that this argument is

foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United States

,

523 U.S. 224, 235 (1998). See, e.g.

, United States v. Alfraro

, 408 F.3d 204, 210-

11 (5th Cir. 2005), cert. denied (Oct. 3, 2005) (No. 05-5604).

5 See United States v. Mares

, 402 F.3d 511, 520 (5th Cir. 2005). Under

plain error review, this Court has “a limited power to correct errors that were

forfeited because [they were] not timely raised in the district court.” U nited

States v. Olano

, 507 U.S. 725, 731 (1993). We may not correct an error that the

defendant failed to raise in the district court unless there is “(1) error, (2)

that is plain, and (3) that affects substantial rights.” M ares

, 402 F.3d at 520

(citing United States v. Cotton , 535 U.S. 625, 631 (2002)).

6 Mares

, 402 F.3d at 520-21 (finding that a sentence imposed under the

mandatory Sentencing Guidelines is plain error).

7 To make su ch a showing, Talavera “bears the burden of demonstrating a

probality sufficient to undermine confidence in the outcome.” U nited States v.

Bringier

, 405 F.3d 310, 317 (5th Cir. 2005). Specifically, the question is

whether Talavera can demonstrate “that the sentencing judge would have reached

a different result had it sentenced [him] under an advisory scheme rather than

a mandatory one.” Id.

3 Guidelines. Talavera timely filed a notice of appeal, and we have

jurisdiction pursuant to 28 U.S.C. § 1291.

Talavera now argues that the district c ourt erred when, in

light of United States v. Booker

, 3 it sentenced him under a

mandatory application of the United States Sentencing Guidelines. 4

Talavera concedes that he is raising Booker error for the first

time o n appeal; thus, his claim is reviewed for plain error. 5

Likewise, the government concedes that the first two elements of

plain error are satisfied in this case: the district court plainly

erred in sentencing Talavera under the mandatory guidelines. 6 The

issue for decision is whether Talavera can demonstrate that his

substantial rights were affected by the court’s error. 78 United States v. Rodriguez-Gutierrez

,

___ F.3d

___, 2005 WL 2447908, *1-2

(5th Cir. Oct. 5, 2005).

9 Id. at *2-3.

4 In United States v. Rodriguez-Gutierrez

, we summarized

existing case law and found two primary considerations for

determining whether a district court’s Booker error af fected a

defendant’s substantial rights. First, we consider whether the

judge made any statements during sentencing indicating that had the

Guidelines been merely advisory, the defendant would have received

a lower sentence. 8 Second, we consider the relationship between

the sentence imposed and the applicable Guideline s range, noting

that “sentences falling at the absolute minimum of the Guidelines

provide the strongest support for the argument that the judge would

have imposed a lesser sentence.” 9

Here, both factors point toward a conclusion that Talavera’s

substantial rights were affected. During sentencing, the judge

stated, when considering Talavera’s prior conviction, that “the law

is very, very strict” and that the “United States Congress”

believes that you “cannot escape your past.” In addition, the

judge expressed hope that the “stiff consequences” of returning to

the United States would one day “change” and “make a little bit

more sense.” The judge also remarked that each reason provided by

Talavera’s co unsel for a lower sentence was a “valid

consideration.” Finally, the judge sentenced Talavera at the

bottom of the applicable range (here, 57 months). Thus, we10 “If all three conditions [of plain error] are met an appellate court may

then exercise its dis cretion to notice a forfeited error but only if (4) the

error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” M ares

, 402 F.3d at 520 (citing Cotton

, 525 U.S. at 631); see also

United States v. Dunn

, No. 04-20100, 2005 WL 1847210, *2 (5th Cir. Aug. 3, 2005)

(“Because the error likely increased his sentence, Dunn has shown that the error

seriously affected the fairness, integrity, or public reputation of the judicial

proceedings.”).

5 conclude that Talavera has shown that the district court’s Booker

error affected his substantial rights.

Accordingly, exercising our discretion under plain-error

review, 10 we REMAN D to the district court to allow the district

court to resentence Talavera if, in its discretion under the nowadvisory Guidelines, it chooses to do so.