United States v. Civil ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 6, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-40144
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUELA DELAROSA CIVIL, also known as
Manuela Delarosa Martinez,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Eastern District of Texas
(No. 1:03-CR-141-1)
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ON REMAND FROM THE UNITED STATES SUPREME COURT
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 Manuela Delarosa Civil’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this opinion should not be published and is not precedent except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
Civil pled guilty to and was convicted of possession with
intent to distribute methamphetamine, in violation of 21 U.S.C. §
841(a)(1). Her base offense level under § 2D1.1(c)(6) of the
Sentencing Guidelines was 28, based on the quantity of
methamphetamine involved. Her offense level was then increased by
two levels pursuant to USSG § 2D1.1(b)(3), based on a finding by
the district court that the object of the offense was the
distribution of a controlled substance in a federal prison. Civil
met the stringent criteria for the safety valve exception of USSG
§ 5C1.2 and thereunder received a two-level reduction. Finally,
Civil received a three-level reduction for acceptance of
responsibility, under USSG § 3E1.1, resulting in a total offense
level of 25. With a criminal history category of I, the applicable
guideline range for imprisonment was 57-71 months, and the district
court sentenced Civil to 57 months’ imprisonment. Although the
district court sentenced Civil to the minimum Guidelines sentence,
it made no statement whatsoever concerning whether it would be
inclined to impose a lesser sentence under an advisory sentencing
scheme.
Civil appealed her conviction and sentence, arguing that she
was erroneously denied a downward adjustment to her sentence under
USSG § 3B1.2(b) based on her minor role in the offense. We
affirmed in an unpublished opinion, upholding the district court’s
finding that Civil was in fact a key participant in the drug
2
trafficking transaction for which she was convicted.2 Civil then
petitioned the United States Supreme Court for a writ of
certiorari. 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
Civil raised her Booker claim for the first time in her
petition for certiorari. Therefore, we will not review her Booker
claim absent “extraordinary circumstances.”3 The extraordinary
circumstances standard is more demanding than the plain error
review that we employ when a defendant has raised her Booker claim
for the first time on appeal.4 Therefore, if a defendant cannot
satisfy the plain error standard, she certainly cannot satisfy the
extraordinary circumstances standard.5 As Civil’s claim does not
survive plain error review, we need not address the question of
extraordinary circumstances.
2
United States v. Civil, No. 04-40144, 112 Fed. Appx. 968
(5th Cir. October 20, 2004) (unpublished opinion).
3
United States v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).
In their supplemental letter briefs the parties both state that
plain error is the appropriate standard of review; we disagree.
See United States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir. 1992)
(en banc) (“A reviewing court may reject both parties’ approach to
the standard [of review;] ... [i]f neither party suggests the
appropriate standard, the reviewing court must determine the proper
standard on its own ....”) (citations omitted). In any event, as
discussed below Civil does not satisfy even plain error review.
4
Taylor, 409 F.3d at 676.
5
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.”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
a more complex inquiry in which the defendant bears the burden of
proof. She carries her burden if she can “demonstrate a
probability ‘sufficient to undermine confidence in the outcome.’”9
The defendant demonstrates such a probability when she 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 her supplemental letter brief, Civil concedes that there
are no statements by the district court in the record indicating
that it would have sentenced her differently under an advisory
Guidelines scheme. Instead, Civil calls to our attention the fact
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).
9
Id. (quoting United States v. Dominguez Benitez, 542 U.S. 74
(2004)).
10
Id. at 522.
4
that the district court imposed only the minimum sentence under the
Guidelines. However, we have 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.”11 Civil thus
fails to demonstrate from the record that her sentence would have
been significantly different under an advisory Guidelines scheme,
and she therefore has not carried her burden to establish error
affecting substantial rights.
Civil next argues that she should not be required to carry
this burden at all, because Booker error is (1) structural and (2)
presumptively prejudicial. We have specifically rejected both of
these contentions.12 Civil further urges us to abandon our approach
under Mares and instead apply the law of the Fourth,13 Sixth14 and
Ninth15 Circuits. 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.
11
United States v. Bringier, 405 F.3d 310, 318 n.4 (5th Cir.
2005) (citing Mares, 402 F.3d at 521-22).
12
See United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th
Cir. 2005) (rejecting structural error argument); United States v.
Arnold, 416 F.3d 349, 2005 WL 1546254 at *9 n.23 (5th Cir. 2005)
(rejecting both structural error and presumptive prejudice
arguments).
13
See United States v. Hughes, 396 F.3d 374 (4th Cir. 2005).
14
See United States v. Oliver, 397 F.3d 369 (6th Cir. 2005).
15
See United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005)
(en banc).
5
As Civil has failed to satisfy plain error review, we do not
reach her argument that error in her 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, Civil’s sentence is AFFIRMED.
6