Filed: Mar. 07, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS March 7, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 04-50594 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GUILLERMO HERNANDEZ-DE LA TORRE, Defendant-Appellant. - - - - - - - - - - Appeal from the United States District Court for the Western District of Texas (No. 5:04-CR-55-ALL) - - - - - - - - - - Before JONES, Chief Judge, JOLLY and WIENER, Circuit Judges. PER
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS March 7, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 04-50594 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GUILLERMO HERNANDEZ-DE LA TORRE, Defendant-Appellant. - - - - - - - - - - Appeal from the United States District Court for the Western District of Texas (No. 5:04-CR-55-ALL) - - - - - - - - - - Before JONES, Chief Judge, JOLLY and WIENER, Circuit Judges. PER ..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 7, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-50594
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUILLERMO HERNANDEZ-DE LA TORRE,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Western District of Texas
(No. 5:04-CR-55-ALL)
- - - - - - - - - -
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
Guillermo Hernandez-De la Torre has submitted a supplemental letter
brief addressing the impact of Booker. The government has
submitted a motion to reinstate our prior affirmance of Hernandez-
De la Torre’s conviction and sentence, which Hernandez-De la Torre
opposes.
*
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this opinion should not be published and is not precedent except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
Hernandez-De la Torre pleaded guilty to reentering the United
States unlawfully following deportation. Hernandez-De la Torre
contends that he reentered the United States to help support his
disabled wife and minor child. In his brief, Hernandez-De la Torre
provides us with some background personal information about
himself, including, inter alia, that he suffered a physical injury
in May 2000, and his physical injury prompted serious psychological
problems.
The district court enhanced Hernandez-De la Torre’s sentence
on the basis that he committed his reentry offense while under a
prior criminal justice sentence. Hernandez-De la Torre appealed
his conviction and sentence, and we affirmed in an unpublished
opinion.2 Hernandez-De la Torre then obtained Supreme Court review
on the issues he raised on appeal and on the constitutionality of
his sentence under Booker. As noted above, the Supreme Court
remanded to us for reconsideration in light of Booker.
II. DISCUSSION
A. Standard of Review
Hernandez-De la Torre raised his Booker claim for the first
time in his petition for certiorari. Therefore, we will not review
his Booker claim absent “extraordinary circumstances.”3 The
extraordinary circumstances standard is more demanding than the
2
U.S. v. Hernandez-De la Torre, No. 04-50594, 111 Fed. Appx
316 (5th Cir. Oct. 21, 2004).
3
U.S. v. Taylor,
409 F.3d 675, 676 (5th Cir. 2005).
2
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 plain error review, he certainly cannot
satisfy extraordinary circumstances review.5 Hernandez-De la Torre
argues that the extraordinary circumstances review is inapplicable
in this case for a variety of reasons. As his claim does not
survive plain error review, we need not address his objections to
the extraordinary circumstances standard.
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 constitutes error, and 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 only if he can “demonstrate a probability
‘sufficient to undermine confidence in the outcome.’”9 The
defendant demonstrates such a probability when he identifies from
4
Id.
5
Id.
6
U.S. v. Cotton,
535 U.S. 625, 631 (2002).
7
Id.
8
U.S. v. Mares,
402 F.3d 511, 521 (5th Cir. 2005).
9
Id. (quoting U.S. v. Dominguez Benitez,
542 U.S. 74 (2004)).
3
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, Hernandez-De la Torre points
to his family circumstances and his physical and psychological
condition as grounds for a downward departure. Hernandez-De la
Torre argues that because the Guidelines discourage considerations
such as family ties and physical and psychological condition, there
is a probability that the district court would have sentenced him
differently under an advisory Guidelines scheme.
For openers, as Hernandez-De la Torre concedes, there is no
indication in the record that the district court would have
sentenced him differently. Moreover, Hernandez-De la Torre’s
argument is unpersuasive on its merits. Although the Guidelines
state that “family ties and responsibilities are not ordinarily
relevant in determining whether a departure may be warranted,” the
commentary to that section specifically provides that the
sentencing court may take a family’s loss of financial support into
account in deciding to depart downward.11 Similarly, although the
physical condition is not “ordinarily” relevant to the sentencing
determination under the Guidelines, that section explicitly
provides that “extraordinary physical impairment may be a reason to
10
Id. at 522.
11
U.S.S.G. § 5H1.2.
4
depart downward.”12 As with physical condition, the defendant’s
mental condition is typically not relevant in fashioning a
sentence.13 The Guidelines do provide, however, that the court may
consider a mental condition that is present to “an exceptional
degree.”14 Furthermore, although the Guidelines are now advisory,
sentencing courts still must consider them.15 Thus, Hernandez-De
la Torre’s argument that a sentencing court would have sentenced
him differently under an advisory Guidelines scheme is
unpersuasive. Accordingly, Hernandez-De la Torre fails to carry
his burden under the third prong of the plain error test.
Concomitantly, Hernandez-De la Torre fails to demonstrate that
extraordinary circumstances entitle him to resentencing.
In the alternative, Hernandez-De la Torre urges us to abandon
the standard of review we adopted in Mares and instead apply the
plain error standard employed by, inter alia, the Fourth Circuit.
Mares, however, 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. Accordingly, we affirm the sentence
imposed below.
III. CONCLUSION
12
Id. at § 5H1.4.
13
Id. at § 5H1.3.
14
Id. at § 5K2.0(a)(4).
15
Mares, 402 F.3d at 518-19.
5
As there exist no extraordinary circumstances or other grounds
for relief, Hernandez-De la Torre’s sentence is AFFIRMED. The
government’s motion to reinstate our prior affirmance is DENIED as
moot.
6
