United States v. Birula-Hernandez ( 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. 04-40271
c/w No. 04-40279
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN BIRULA-HERNANDEZ,
Defendant-Appellant.
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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
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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.
*
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this opinion should not be published and is not precedent except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
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),2 adopted 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, Blakely3 was 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conviction and sentence in an unpublished opinion.4 Birula-
Hernandez then petitioned the United States Supreme Court for a
writ of certiorari, and while his petition was pending the Supreme
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
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.5 This means that 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
constitutes (1) error (2) that is plain.8 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.’”9 The defendant demonstrates such a probability
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
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.11 Mares 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 Birula-
Hernandez presents no viable ground for remand under Mares, we
affirm his sentence.
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
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.
5