United States v. Jaquez-Tenorio ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 21, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-50439
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO JAQUEZ-TENORIO,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Western District of Texas
(3:04-CR-111-ALL-PRM)
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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
Pedro Jaquez-Tenorio 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. Jaquez-Tenorio opposes the Government’s
motion. For the following reasons, we find that Booker does not
affect Jaquez-Tenorio’s sentence.
*
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this opinion should not be published and is not precedent except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).
I. BACKGROUND
Jaquez-Tenorio pled guilty to and was convicted of 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 and one year of supervised release. Jaquez-
Tenorio’s base offense level under § 2L1.2(a) of the Sentencing
Guidelines was 8, but the district court imposed a 12-level
enhancement under § 2L1.2(b)(1)(B) based on a prior aggravated
felony conviction. With a three-level reduction for acceptance of
responsibility, Jaquez-Tenorio’s total offense level was 17. This,
combined with a criminal history category of II, resulted in a
Guidelines imprisonment range of 27 to 33 months. The district
court sentenced Jaquez-Tenorio to 27 months’ imprisonment to be
followed by three years’ supervised release. Jaquez-Tenorio
objected to the sentence on Apprendi2 grounds because it exceeded
the statutory maximum, which objection the district court
overruled.
Jaquez-Tenorio appealed his conviction and sentence, arguing
that because the indictment did not state a § 1326(b) offense
because it did not allege a prior conviction, his sentence exceeded
the statutory maximum in violation of the Constitution. In the
alternative he challenged the constitutional validity of § 1326(b).
In his brief on appeal Jaquez-Tenorio acknowledged that his
arguments were foreclosed by precedent, but raised them only to
2
530 U.S. 466 (2000).
2
preserve them for possible review by the Supreme Court. We
affirmed the conviction and sentence in an unpublished opinion.3
Jaquez-Tenorio then petitioned the United States Supreme Court for
a writ of certiorari. After Booker was decided, Jaquez-Tenorio
submitted a supplemental petition for certiorari in which he
challenged his mandatory Guideline sentence. As noted above, the
Supreme Court vacated the judgment and remanded to this court for
further consideration in light of Booker.
II. DISCUSSION
A. Standard of Review
Jaquez-Tenorio raised his Booker claim for the first time in
his supplemental petition for certiorari. Therefore, we will not
review his Booker claim absent “extraordinary circumstances.”4 The
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.5 Therefore, if a
defendant cannot satisfy the plain error standard, he certainly
cannot satisfy the extraordinary circumstances standard.6 As
Jaquez-Tenorio’s claim does not survive plain error review, we need
not address the question of extraordinary circumstances.
3
United States v. Jaquez-Tenorio, No. 04-50439, 111 Fed.
Appx. 318 (5th Cir. October 21, 2004) (unpublished opinion).
4
United States v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).
5
Id.
6
Id.
3
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.”7 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.”8 Since Booker, sentencing
under mandatory Guidelines (1) constitutes error, and (2) that
error is plain.9 Whether 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.’”10 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.11
B. Merits
In his supplemental letter brief, Jaquez-Tenorio concedes that
“the district court made no particular remarks disagreeing with the
requirements of the mandatory guidelines,” or otherwise indicating
that it would have sentenced him differently under an advisory
7
United States v. Cotton, 535 U.S. 625, 631 (2002).
8
Id.
9
United States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005).
10
Id. (quoting United States v. Dominguez Benitez, 542 U.S.
74 (2004)).
11
Id. at 522.
4
Guidelines scheme. Instead, Jaquez-Tenorio calls to our attention
“mitigating circumstances surrounding [his] illegal reentry offense
that support a finding of a reasonable likelihood of a lower
sentence.” He invites us to draw the conclusion that it was
“[a]pparently due to these mitigating circumstances [that] the
court imposed [a] sentence at the bottom of the calculated
guideline sentence range.”
In United States v. Bringier, we held that “[t]he fact that
the sentencing judge imposed the minimum sentence under the
Guideline range ... alone is no indication that the judge would
have reached a different conclusion under an advisory scheme.”12
In his supplemental letter brief, Jaquez-Tenorio attempts to
distinguish Bringier from his case based on factual differences.
But these differences —— for example, that Bringier was a “large-
scale drug trafficker” while Jaquez-Tenorio was “an illegal alien
who merely crossed the border” —— have no bearing whatsoever on the
question whether we may infer from a Guideline-minimum sentence
that the defendant would have been sentenced differently under an
advisory scheme. The significance of any factual differences is,
of course, borne out in the sentences imposed: Bringier was
sentenced to a Guideline-minimum 30 years’ imprisonment, compared
to Jaquez-Tenorio’s 27 months’. Yet, in neither case may we
conclude that the district court would have imposed a lesser
sentence under an advisory scheme. Jaquez-Tenorio’s attempt to
12
405 F.3d 310, 318 n.4 (5th Cir. 2005) (citing Mares, 402
F.3d at 521-22).
5
distinguish Bringier is simply unconvincing. As he fails to
demonstrate from the record that his sentence would have been
significantly different under an advisory Guidelines scheme, he has
not carried his burden to establish error affecting substantial
rights.
Jaquez-Tenorio next expresses his disagreement with our
application of the plain error standard, as articulated in Mares,
in order to preserve a challenge for possible Supreme Court review.
Mares is the settled law of this circuit, however, and we may
revisit it only en banc or following a Supreme Court decision that
effectively overturns it.
As Jaquez-Tenorio has failed to satisfy plain error review, we
do not reach his argument that error in his sentencing seriously
affected the fairness, integrity and public reputation of the
proceedings.
III. CONCLUSION
As there exist no extraordinary circumstances or other grounds
for relief, Jaquez-Tenorio’s sentence is AFFIRMED. The
Government’s motion to reinstate our prior affirmance is DENIED as
moot.
6