* 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this opinion should not be published and is not precedent except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 6, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-50615 

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HECTOR AVILA-FERNANDEZ, also known as Juan Antonio Mata,

Defendant-Appellant.

- - - - - - - - - -

Appeal from the United States District Court

for the Western District of Texas, El Paso

(No. 3:04-CR-324-ALL-KC)

- - - - - - - - - -

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 Hector Avila-Fernandez’s sentence.

I. BACKGROUND

Avila-Fernandez pleaded guilty to reentering the United States

illegally following removal, in violation of 8 U.S.C. § 1326, an

offense that is punishable by up to two years imprisonment. At his
2 United States v. Avila-Fernandez, No. 04-50615, 111 Fed.

Appx. 328 (5th Cir. 2004).

3 Alfaro v. United States, —— U.S. ——, 125 S. Ct. 1422 (2005).

4 United States v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).

5 Id.

2

sentencing —— which occurred prior to Booker —— the district court

increased Avila-Fernandez’s offense level under the then-mandatory

Sentencing Guidelines by 16 levels, because he had a prior

aggravated felony conviction. Following the Guidelines, the court

sentenced Avila-Fernandez to 46 months imprisonment. AvilaFernandez then appealed his sentence, arguing that it violated the

Fifth Amendment’s Due Process Clause. After we affirmed in an

unpublished opinion,2 Avila-Fernandez petitioned the Supreme Court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 AvilaFernandez’s sentence.

II. DISCUSSION

A. Standard of Review

Avila-Fernandez 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, Avila-Fernandez cannot
6 United States v. Cotton, 535 U.S. 625, 631 (2002).

7 Id.

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

9 Id. (quoting United States v. Olano, 507 U.S. 725, 734

(1993)).

3

meet the requirements of plain error review, he certainly cannot

satisfy the requirements of extraordinary circumstances review.

So, despite the fact that Avila-Fernandez argues that the

extraordinary circumstances standard is inapplicable in this case

for a variety of reasons, because —— as Avila-Fernandez concedes ——

he cannot meet even 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
10 Id. (quoting United States v. Dominguez Benitez, 542 U.S.

74 (2004)).

11 Id.

12 See, e.g., United States v. Barnett, 398 F.3d 516 (6th Cir.

2005).

4

‘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, Avila-Fernandez concedes

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

circuit.” Specifically, Avila-Fernandez 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.
5

III. CONCLUSION

As there exist no extraordinary circumstances or other grounds

for relief, Avila-Fernandez’s sentence is AFFIRMED. The

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

moot.