1 United States v. Rodriguez-Gutierrez, 119 Fed. Appx. 681 (5th Cir.

2005) (per curiam). United States Court of Appeals

Fifth Circuit



## FILED

October 5, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-30451

Summary Calendar

United States of America

Plaintiff-Appellee,

versus

Luis Alonso Rodriguez-Gutierrez, also known as Saul

Martinez-Guevara, also know as Luis Rodriguez, also known

as Saul Alberto Martinez-Guevara, also known as Alonzo

Martinez-Lopez, also known as Luis Alonso

Gutierrez-Rodriguez, also known as Luis Martinez, also known

as Alonso Martines

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Louisiana

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Defendant-Appellant Luis Alonso Rodriguez-Gutierrez pled

guilty to illegal re-entry following deportation subsequent to an

aggravated felony, in viola tion of 8 U.S.C. § 1326(a) & (b). We

affirmed. 1 After the Supreme Court decided U nited States v.2 125 S. Ct. 738 (2005).

3 Rodriguez-Gutierrez v. United States, 125 S. Ct. 2308 (2005).

4 United States v. Hernandez-Gonzalez, 405 F.3d 260, 261 (5th Cir. 2005).

5 See United States v. Mares, 402 F.3d 511, 5120 (5th Cir. 2005), pet.

for cert. filed , (U.S. Mar. 31, 2005) (No. 04-9517).

6 United States v. Olano, 507 U.S. 725, 731 (1993).

2 Booker

, 2 it vacated Rodriguez’s sentence and remanded to this Court

for further consideration in light of that decision. 3 We requested

and received supplemental letter briefs addressing the impact of

Booker , and we again affirm Gutierrez’s sentence.

Gutierrez did no t raise the B ooker error until his petition

for writ of certiorari to the Supreme Court. Absent extraordinary

circumstances, w e will not consider a defendant’s B ooker -related

claims presented for the first time in a petition for rehearing. 4

Gutierrez has presented no evidence of extraordinary circumstances.

Even if a showing of extraordinary circumstances was not

required, our review would be for plain error because Gutierrez did

not raise his Booker claims in district court. 5 Under plain error

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

forfeited because [they were] n ot timely raised in the district

court.” 6 “An appellate court may not correct an error the

defendant failed to raise in the district court unless there is (1)7 Mares , 402 F.3d at 520 (citing United States v. Cotton , 535 U.S. 625,

631 (2002)).

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

the mandatory Sentencing Guidelines is plain error).

9 United States v. Bringier, 405 F.3d 310, 317 (5th Cir. 2005), pet. for

cert. filed (July 26, 2005) (No. 05-5535).

10 Id.

11 United States v. Dominguez-Benitez, 124 S. Ct. 2333, 2340 (2004).

3 e rror, (2) that is plain, and (3) that affects substantial

rights.” 7

Here, although Rodriguez can meet the first and second prongs

of the plain error standard, 8 he cannot show that the error

affected his substantial rights. To make such a showing, Rodriguez

“bears the burden of demonstrating a probability suff icient to

undermine confidence in the outcome.” 9 Specifically, the question

is whether Gutierrez 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.” 10 Guiding this

Court’s review, the Supreme Court mandates that establishing such

error “should not be too easy.” 11

In light of Booker

, we have reviewed numerous sentences under

this plain error standard. Often, and likely quite rightly, our

opinions do not provide any extended analysis, as most defendants

have no evidence suggesting that any B ooker error affected the i r

substantial righ ts. Our opinions giving the issue any extended

treatment have focused on two issues: first, whether the judge made12 Bringier , 405 F.3d at 317.

13 Id. at 317 & n.4.

14 United States v. Pennell, 409 F.3d 240, 245-46 (5th Cir. 2005).

4 any statements duri ng sentencing indicating that he would have

imposed a lesser sentence had he not considered the Guidelines

mandatory; second, the relations hip between the actual sentence

imposed and the range of sentences provided by the Guidelines.

Each will be addressed in turn.

Our cases have placed a substantial burden upon defendants to

show specific s tatements of the sentencing judge that suggest a

lower sentence would be imposed under an advisory system. In

United States v. B ringier , the Court found that the “substantial

rights” prong of plain error review was not satisfied because the

defendant could not point to anything in the record that indicated

that the sentencing judge would have reached a different conclusion

under an advisory scheme. 12 The Court, “out of an exercise of

caution, but not out of any obligation to do so,” reviewed the

sentencing hearing transcript and concluded that a sent e ncing

judge’s mere “acknowledgment” that a sentence was “harsh” was not

sufficient to establish that the defendant’s substantial rights

were affected. 13

In contrast, in United States v. Pennell

, a panel of this

Court found that the defe ndant’s substantial rights had been

affected and remand ed for resentencing. 1 4 There, the sentencing15 Id.

16 Id. at 246.

5 judge indicated that “from many standpoints of fa irness and

justice, it might be better to sentence people just based on actual

loss, but I don’t think that’s the way the Guidelines are written

. . . . So I feel constrained to” sentence the defendant in

a ccordance with the Guidelines. 1 5 On this basis, the Court

concluded that th e district court would have selected a sentence

other than the one mandated by the Guidelines. 16

Here, nothing in the sta tements by the district court judge

suggest that he would have imposed a lower sentence on Gutierrez

had he not considered the Guidelines mandatory. Specifically, the

judge stated:

Well, he doesn’t have a good record and, as you say, he

i s a supervised release violator. He has two cocaine

convictions, a hit-and-run conviction, and he has got ten

or so other minor violations. I sympathize with his

family situation. As everybody knows, I have lost my own

wife. It’s not easy to do. There are many immigration

laws that I don’t agree with, frankly, but they are the

law and they have to be complied with and someone with a

bad record does not deserve sympathy especially someone

with a drug record.

The only statement suggesting that the sentence was inappropriate

is the judge’s disagreement with “immigration laws.” This could

mean, as Rodriguez argues, that the judge felt the sentence

mandated by the Gu idelines inappropriate; it could also mean, as

the government contends, that the judge considered the particular

immigration law violated by Rodriguez inappropriate. Without more,17 Bringier , 405 F.3d at 317 n.4 (“In addition, the fact that the

sentencing judge imposed the minimum sentence under the Guideline range (360

months) alone is no indication that the judge would have reached a different

conclusion under an advisory scheme.”) (citing Mares , 402 F.3d at 521-22).

18 Id.

19 Pennell , 409 F.3d at 246 (recognizing that “[t]he district court

sentenced Pennell at the bottom of the Guideline range”).

20 404 F.3d 376, 394-95 (5th Cir. 2005).

6 we cannot say that the judge’s B ooker error affected Rodriguez’s

substantial rights.

Our cases also have given varying weight to the relationship

between the actual sentence imposed and the range of sentences

provided by the Guidelines. In B ringier

, for instance, this Court

refused to give any weight to the fact that the imposed sentence

was at the bottom end of the Guidelines. 17 The Court stated that

the mere fact that the sentencing judge sentenced the defendant to

the minimum sentence under the Guidelines “is no indication that

the judge would have reached a different conc lusion under an

advisory scheme.” 18 In P ennell

, by contrast, this Court referenced

the fact that the judge imposed the minimum possible sentence and

concluded that the defendant’s substantial rights were affected by

the judge’s Booker error. 19 In U nited States v. Infante

, this Court

found that the defendant’s substantial rights were not affected

because, in part, the imposed sentence was in th e middle of the

provided ranges. 20 Finally, in U nited States v. Garcia

, the

sentencing judge, after commenting that he would prefer to impose21 United States v. Garcia, No. 04-40963, 2005 WL 1606898, at *1 (5th

Cir. July 11, 2005).

22 See, e.g.

, Infante , 404 F.3d at 394-95.

23 See supra note 17.

24 See Mistretta v. United States, 488 U.S. 361, 363-67 (1989)

(discussing the justifications for the Guideline system).

7 a lesser sentence, set the defendant’s sentence “at the very bottom

of the applicable Guidelines range.” 21

I n reviewing sentences imposed in violation of Booker fo r

plain error, we see three potential relationships: (1) the sentence

imposed was the absolute maximum sentence provide d under the

Guidelines; (2) the sentence imposed was the absolute minimum

sentence provided und er the Guidelines; and (3) the sentence

imposed was somewhere in the middle of the range provided by the

Guidelines. Although the third class of cases does not tell us

much about whether the sentencing judge would have imposed a lesser

sentence, 22 there is a strong argument that the first two situations

are probative on wh ether the defendant’s substantial rights were

affected by the Booker error. B ringier

, however, has rejected this

contention. 23

Sentences that fall at the absolute maximum of the Guidelines

provide the strongest support for the argument that the judge would

not have imposed a lesser sentence. Although the mandatory

Guidelines were designed to reduce sentence disparity, 24 they still25 Prior to Booker , 18 U.S.C. § 3553(a)(4) required courts to consider

“the kinds of sentence and the sentencing range established for (A) the

applicable category of offense committed by the applicable category of

defendant as set forth in the guidelines.”

26 See United States v. Paladino, 401 F.3d 471, 482 (7th Cir. 2005).

8 left some discretion to the sentencing judge within a particular

range. 25

Likewise, sentences falling at the abso lute minimum of the

Guidelines provide the strongest support for the argument that the

judge would have imposed a lesser sentence. Although we do not

hold that this fact alone will establish that the Booker error

affected the defendant’s substantial rights, we do consider it be

highly probative, when taken together with relevant statements by

the s entencing judge indicating disagreement with the sentence

imposed, that the Booker error did affect the defendant’s

substantial rights.

To clarify, we do not suggest that a defendant sentenced at

the absolute maximum of the range provided by the Guidelines will

never be able to show that his substantial rights were affected.

We agree with the Seventh Circuit that a judge could consider one

defendant a more serious offender than another defendant and thus

sentence the former to a higher sentence within the range, even

while considering the entire range to be too high. 2 6 Nor do we

suggest that every sentence imposed at the absolute minimum of the

range provided by the Guidelines will necessarily compel reversal

by this Court. We only make explicit what our prior cases had done9

implicitly––that is, examining the relationship between the

sentence imposed and the range provided to the sentence judge under

the perceived mandatory Guidelines.

Here, not only can Gutierrez not point to any evidence that

the judge would have imposed a lesser sentence under an advisory

system, Gutierrez’s sentence was imposed at the maximum level

provided by the Guidelines. Thus, we conclude that Gutierrez

cannot show that the judge’s Booker error affected his substantial

rights.

Accordingly, Gutierrez’s sentence is AFFIRMED.