* 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this opinion should not be published and is not precedent except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. 04-50385 

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE AVILES-JAIMES,

Defendant-Appellant.

- - - - - - - - - -

Appeal from the United States District Court

for the Western District of Texas

(No. 1:04-CR-12-ALL-SS)

- - - - - - - - - -

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 Jose

Aviles-Jaimes has submitted a supplemental letter brief addressing

the impact of Booker, to which the Government has responded with a

motion to reinstate our prior affirmance of his conviction and

sentence. For the following reasons, we find that Booker does not

affect Aviles-Jaimes’s sentence.
2 United States v. Aviles-Jaimes, No. 04-50385, 112 Fed. Appx.

341 (5th Cir. Oct. 21, 2004).

2

I. BACKGROUND

In February 2004, Aviles-Jaimes pleaded guilty to being in the

United States unlawfully following deportation, in violation of 8

U.S.C. § 1326. This offense carries a maximum penalty of two

years’ imprisonment under § 1326(a) and one year of supervised

release. Pursuant to § 1326(b), however, the district court

increased Aviles-Jaimes’s offense level under the Guidelines based

on its findings that he committed his reentry offense while on

parole and less than two years after being released from custody

for a prior offense. The district court sentenced Aviles-Jaimes to

41 months’ imprisonment and three years of supervised release.

Aviles-Jaimes appealed his conviction, arguing that his

indictment did not state a § 1326(b) offense because it did not

allege a prior conviction, and that his sentence therefore exceeded

the statutory maximum in violation of the Constitution. We

affirmed his conviction and sentence in an unpublished opinion.2

Aviles-Jaimes then applied to the United States Supreme Court for

relief, challenging for the first time in his petition for

certiorari the constitutionality of the Sentencing Guidelines as

applied to him. As noted above, the Supreme Court remanded to us

for reconsideration in light of Booker.
3 United States v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).

4 Id.

5 Id.

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).

3

II. DISCUSSION

A. Standard of Review

Aviles-Jaimes 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

plain error standard 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 As Aviles-Jaimes’s

claim does not survive plain error review, we need not address the

question of extraordinary circumstances. 

Under plain error review, we will not remand for resentencing

unless (1) there is error, (2) that error is plain, and (3) it

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 (1) constitutes error, and (2) that

error is plain.8 Whether the error affects substantial rights is
9 Id. (quoting United States v. Dominguez Benitez, 542 U.S. 74

(2004)).

10 Id. at 522.

11 See, e.g., United States v. Hughes, 401 F.3d 540 (4th Cir.

2005).

4

a more complex inquiry in which the defendant bears the burden of

proof. He carries his burden if he can “demonstrate a probability

‘sufficient to undermine confidence in the outcome.’”9 The

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.10

B. Merits

In his supplemental letter brief, Aviles-Jaimes concedes that

he cannot carry his burden under the third prong of the plain error

test. Specifically, Aviles-Jaimes 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 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.11

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

imposed below.

III. CONCLUSION
5

As there exist no extraordinary circumstances or other grounds

for relief, Aviles-Jaimes’s sentence is AFFIRMED. The Government’s

motion to reinstate our prior affirmance is DENIED as moot.