United States v. Miranda-Moya

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. 04-50579
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS MIRANDA-MOYA,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Western District of Texas
(3:04-CR-104-ALL-KC)
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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 Jose
Luis Miranda-Moya 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. Miranda-Moya opposes the Government’s
motion. For the following reasons, we find that Booker does not
affect Miranda-Moya’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this opinion should not be published and is not precedent except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
Miranda-Moya pled guilty to and was convicted of attempting to
enter the United States unlawfully after removal, in violation of
8 U.S.C. § 1326. This offense carries a maximum penalty of two
years’ imprisonment. At the time of his attempt to reenter the
United States, Miranda-Moya was on probation for a prior conviction
for a crime of violence, which under § 1326(b) triggered an
increase in the statutory maximum term of imprisonment. The
district court imposed a sentence of 46 months’ imprisonment.
Miranda-Moya objected to the sentence on the ground that it
exceeded the statutory maximum, which objection the district court
overruled.
Miranda-Moya 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 his constitutional due
process rights. In his brief on appeal Miranda-Moya acknowledged
that his arguments were foreclosed by precedent, but raised them
only to preserve them for possible review by the Supreme Court. We
affirmed the conviction and sentence in an unpublished opinion.2
Miranda-Moya then petitioned the United States Supreme Court for a
writ of certiorari. After Booker was decided, Miranda-Moya
submitted a supplemental petition for certiorari in which he
2
United States v. Miranda-Moya, No. 04-50579, 110 Fed. Appx.
429 (5th Cir. October 21, 2004) (unpublished opinion).
2
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
Miranda-Moya 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.”3 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.4 Therefore, if a
defendant cannot satisfy the plain error standard, he certainly
cannot satisfy the extraordinary circumstances standard.5 As
Miranda-Moya’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 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
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.
3
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. 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, Miranda-Moya concedes that
“the district judge made no particular remarks disagreeing with the
requirements of the mandatory guidelines,” or otherwise indicating
that she would have sentenced him differently under an advisory
Guidelines scheme. Instead, Miranda-Moya 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
“apparently in light of these [mitigating] circumstances” that the
district court imposed the minimum Guidelines sentence.
In United States v. Bringier, we held that “[t]he fact that
the sentencing judge imposed the minimum sentence under the
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
Guideline range ... alone is no indication that the judge would
have reached a different conclusion under an advisory scheme.”11
In his supplemental letter brief, Miranda-Moya 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 Miranda-Moya 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 Miranda-Moya’s 46 months’. Yet, in neither case may we conclude
that the district court would have imposed a lesser sentence under
an advisory scheme. Miranda-Moya’s attempt to 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.
Miranda-Moya 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.
He urges us to abandon our approach and instead apply that of the
11
405 F.3d 310, 318 n.4 (5th Cir. 2005) (citing Mares, 402
F.3d at 521-22).
5
Fourth Circuit.12 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 Miranda-Moya 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, Miranda-Moya’s sentence is AFFIRMED. The Government’s
motion to reinstate our prior affirmance is DENIED as moot.
12
See United States v. Hughes, 401 F.3d 540, 549 (4th Cir.
2005).
6