*

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this opinion should not be published and is not precedent except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

April 6, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-41106

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ERNESTO ALVARADO,

Defendant-Appellant.

- - - - - - - - - -

Appeal from the United States District Court

for the Southern District of Texas

(No. 2:03-CR-58)

- - - - - - - - - -

Before JONES, Chief Judge, JOLLY and WIENER, Circuit Judges.

PER CURIAM:*

This matter is before us on remand from the United States

Supreme Court in light of its recent opinion in United States v.

Booker.

1

At our request, the parties have submitted supplemental

letter briefs addressing the impact of Booker. For the following

reasons, we find that Booker does not affect Defendant-Appellant

Ernesto Alvarado’s sentence.

I. BACKGROUND 

In March 2003, a grand jury indicted Alvarado and his codefendant, Efrain Mendez, for knowingly possessing with the intent
2

to distribute more than five kilograms of cocaine, in violation of

21 U.S.C. §§ 841(a)(1) and (b)(1)(A). In April 2003, Alvarado

agreed to plead guilty to the indictment and, in exchange, the

government agreed to (1) recommend that Alvarado receive a threelevel downward adjustment of his offense level for acceptance of

responsibility, and (2) recommend a sentence at the low end of the

applicable United States Sentencing Guidelines range. 

At the re-arraignment hearing, the government submitted the

factual basis for the plea. Specifically, the government stated

that on February 11, 2003, Alvarado and Mendez drove a van into a

Border Patrol checkpoint at Falfurrias, Texas. When a drug dog

alerted to their van, the Border Patrol agent directed the vehicle

to a secondary inspection area. The agent found four cardboard

boxes containing 50 bundles of a material that the agent suspected

to be a controlled substance. The defendants confessed to the

agent that they knew they were transporting contraband, but stated

that they thought it was marijuana. The substance retrieved from

the van was subjected to laboratory analysis, which revealed that

it was cocaine. The analysis also confirmed that the defendants

possessed more than five kilograms of cocaine. The defendants

declared at the re-arraignment hearing that the government had

accurately summarized the facts underlying their pleas of guilty.

The district court found that there was a factual basis to support

a finding of guilt, and accepted the defendants’ guilty pleas. 

At sentencing, the district court questioned whether Alvarado

qualified for the safety-valve provision of the Guidelines, which
2

U.S.S.G. § 5C1.2

3

Id.

4

U.S. v. Alvarado, No. 03-41106, 2004 WL 2383335 (5th Cir.

Oct. 20, 2004).

3

would have entitled him to a two-level downward adjustment of his

offense level.2The criteria for the safety-valve provision

include, inter alia, that “the defendant has truthfully provided to

the Government all information and evidence the defendant has

concerning the offense.”3As the parties disputed the

applicability of the safety-valve provision, the court held a

hearing to determine whether it applied. The government’s case

agent testified that it was her opinion that the defendants knew

they were transporting cocaine, not marijuana, and that the

defendants were not forthcoming with the government regarding the

facts and evidence regarding their offense. The district court then

questioned the defendants. At the conclusion of the hearing, the

district court (1) credited the government case agent’s testimony,

(2) found the defendants not credible, and (3) determined that

Alvarado did not qualify for a sentence reduction under the safetyvalve provision. Accordingly, the district court imposed a 168-

month term of imprisonment and five years of supervised release.

Alvarado appealed his sentence, objecting on the ground that the

district court erred when it held that he failed to meet the

criteria of the safety-valve provision. We rejected Alvarado’s

argument and affirmed the sentence in an unpublished opinion.4
5

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

6

Id.

7

Id.

8

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

9

Id.

10U.S. v. Mares, 402 F.3d 511, 521 (5th Cir. 2005).

4

II. DISCUSSION

A. Standard of Review

The parties dispute whether Alvarado raised his Booker claim

for the first time on appeal or in his petition for certiorari. If

Alvarado raised his Booker claim for the first time in his petition

for certiorari, we will not review it absent “extraordinary

circumstances.”5The extraordinary circumstances standard is more

demanding than the plain error review that we employ when a

defendant has raised his Booker claim for the first time on

appeal.6Therefore, if a defendant cannot satisfy plain error

review, he certainly cannot satisfy extraordinary circumstances

review.7

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.”8If 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.”9Since Booker, sentencing

under mandatory Guidelines constitutes error, and that error is

plain.10 Whether the error affects substantial rights is a more
11Id. (quoting U.S. v. Dominguez Benitez, 542 U.S. 74 (2004)).

12Id. at 522.

5

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.’”11The

defendant demonstrates such a probability when he identifies from

the record an indication that the sentencing judge would have

reached a significantly different result under an advisory

Guidelines scheme.12We need not resolve the parties’ dispute as

to when Alvarado raised his Booker claim because his claim does not

pass the plain error standard. 

B. Analysis

First, Alvarado contends that we should remand for

resentencing because he presents special circumstances.

Specifically, “he was sentenced for Possession with Intent to

Distribute cocaine although at both his plea and sentencing, he

specifically disputed any knowledge of cocaine and consistently

asserted that he believed that he was transporting marijuana.” At

the outset, we note that Alvarado pleaded guilty to knowingly

possessing cocaine with the intent to distribute it. In light of

Alvarado’s voluntary admission of guilt, it is unlikely that an

advisory Guidelines scheme would have affected the sentencing

judge. Furthermore, as noted supra, the district court did not

find Alvarado credible. Thus, Alvarado’s assertion that the court

would have sentenced him differently because he thought he was

transporting marijuana instead of cocaine is unpersuasive. 
6

Second, Alvarado insists that the district court

misapprehended its authority to depart below the Guidelines, and it

would have done so “on the grounds that [Alvarado] was not aware

that he was transporting cocaine and thought, instead, that he was

transporting marijuana.” In support of his argument, Alvarado

observes that the district court stated that no grounds for

departure existed except a downward departure for substantial

assistance. This, however, hardly serves as an indication that the

district court would have been inclined to depart downwardly but

for the then-mandatory nature of the Guidelines. Furthermore, it

is improbable that the sentencing judge would have acted

differently on the ground that Alvarado advances because, as we

have already observed, the record establishes that the sentencing

judge did not find Alvarado credible. Accordingly, Alvarado fails

to carry his burden. 

III. CONCLUSION

As the district court did not commit plain error, Alvarado’s

sentence is

AFFIRMED.