*

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this opinion should not be published and is not precedent except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. 04-40271

c/w No. 04-40279

Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN BIRULA-HERNANDEZ,

Defendant-Appellant.

- - - - - - - - - -

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:03-CR-820-ALL

USDC No. 1:04-CR-61-ALL

- - - - - - - - - -

Before JONES Chief Judge, and 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, 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 Juan Birula-Hernandez’s sentence.
2

USSG § 5G1.1(a) provides: “Where the statutorily authorized

maximum sentence is less than the minimum of the applicable

guideline range, the statutorily authorized maximum sentence shall

be the guideline sentence.”

3

Blakely v. Washington, 542 U.S. 296 (2004).

4

United States v. Birula-Hernandez, No. 04-40271, c/w No. 04-

40279, 111 Fed. Appx. 334 (5th Cir. Oct. 21, 2004) (unpublished

opinion).

2

I. BACKGROUND

In October 2003, Birula-Hernandez pleaded guilty to one count

of illegal reentry, in violation of 8 U.S.C. § 1326. The

presentence report (PSR) calculated a total offense level of 13.

This, combined with a criminal history category of V, resulted in

a Guidelines imprisonment range of 30 to 37 months. The statutory

maximum sentence under 8 U.S.C. § 1326(a) was only 24 months,

however, and the PSR, pursuant to USSG § 5G1.1(a),2adopted the

statutory maximum as the Guidelines range. In February 2004, the

district court accepted the PSR’s recommendations and sentenced

Birula-Hernandez to 24 months’ imprisonment to be followed by one

year of supervised release.

On appeal, Birula-Hernandez challenged the constitutionality

of the illegal reentry statute but conceded that his claim was

foreclosed by precedent. Additionally, Blakely3was decided during

the pendency of the appeal, and Birula-Hernandez cited that

decision as an alternative ground for reversal. We affirmed the

conviction and sentence in an unpublished opinion.4BirulaHernandez then petitioned the United States Supreme Court for a

writ of certiorari, and while his petition was pending the Supreme
5

United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).

6

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

7

Id.

8

Mares, 402 F.3d at 521.

9

Id. (quoting United States v. Dominguez Benitez, 542 U.S. 74

(2004)).

3

Court issued its decision in Booker. Birula-Hernandez amended his

petition to include a Booker argument and, as noted above, the

Supreme Court vacated the judgment and remanded to us for

reconsideration.

II. DISCUSSION

A. Standard of Review

Birula-Hernandez raised his Booker claim for the first time on

appeal. Therefore, we review for plain error.5This means that we

will not remand for resentencing unless there is (1) error, (2)

that is plain, and (3) that affects substantial rights.6If 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

constitutes (1) error (2) that is plain.8Whether the error

affects substantial rights is 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.’”9The defendant demonstrates such a probability
10 Id. at 522.

11 See United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th

Cir. 2005); United States v. Arnold, 416 F.3d 349, 2005 WL 1546254

at *9 n.23 (5th Cir. 2005).

4

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

Birula-Hernandez satisfies the first two prongs of our plain

error review because his sentence resulted from application of the

Guidelines in their mandatory form. He has not, however, met his

burden of showing that this error affected his substantial rights,

as required under Mares. Indeed, in his supplemental letter brief

Birula-Hernandez concedes that “[b]ased on the current record ...

[he] admittedly cannot make such a showing of prejudice.” He

further expresses disagreement with the application of the plain

error standard to his case, but acknowledges that his challenge is

precluded by our holding in Mares. He makes his argument only to

preserve it for further review. Birula-Hernandez also acknowledges

in his supplemental letter brief that his other arguments, that

Booker error is “structural” and presumptively prejudicial, are

likewise foreclosed by precedent.11Mares 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. As BirulaHernandez presents no viable ground for remand under Mares, we

affirm his sentence.
5

III. CONCLUSION

Birula-Hernandez has failed to satisfy his burden of

demonstrating that the plain error at his sentencing affected his

substantial rights. His sentence is

AFFIRMED.