United States v. Madrazo-Constante

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES PER CURIAM: * On a previous appeal, we affirmed Juan Luis Madrazo-Constante’s sentence for illegal reentry after deportation. United States v. Madrazo-Constante, No. 04-40374, 111 Fed.Appx. 283, 2004 WL 2341831 (5th Cir. Oct, 15, 2004) (unpublished). He sought — and the Supreme Court granted — a writ of certiorari. The Supreme Court vacated the judgment and remanded the case for further consideration in light of United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Madrazo-Constante challenged the constitutionality of the Sentencing Guidelines as applied to him for the first time in his petition for a writ of certiorari. Absent exceptional circumstances, we will not consider an argument raised for the first time in a petition for certiorari. United States v. Taylor, 409 F.3d 675, 676 (5th Cir.2005); see also United States v. Hernandez-Gonzalez, 405 F.3d 260, 261-62 (5th Cir.2005); United States v. Ardley, 273 F.3d 991 (11th Cir.2001) (en banc) (holding that even a remand by the Supreme Court for reconsideration in light of an intervening Court opinion does not require the court to consider an argument raised for the first time in a petition for certiorari). While we have not defined what constitutes “extraordinary circumstances” in cases involving Booker issues, we have held that an appellant who cannot satisfy the plain error standard under United States v. Mares, 402 F.3d 511 (5th Cir.2005), petition for cert. filed (March 31, 2005) (No. 04-9517) cannot demonstrate extraordinary circumstances. See Taylor, 409 F.3d at 676 (“Because plain error has not been shown, it is obvious that the much more demanding standard for extraordinary circumstances ... cannot be satisfied.”). Under plain error, this court may only correct a defendant’s sentence if there is an: (1) error; (2) that is plain; (3) that *732 affects substantial rights; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002); see also Fed.R.Crim.P. 52(b) (“A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”). Madrazo-Constante concedes that there were no remarks made by the sentencing judge indicating that he would have imposed a different sentence under an advisory Guidelines scheme. Therefore, he has not shown plain error because he has offered no evidence suggesting that “the sentencing judge — sentencing under an advisory scheme rather than a mandatory one — would have reached a significantly different result.” Mares, 402 F.3d at 521. Accordingly, he has also failed to show extraordinary circumstances warranting consideration of an issue raised for the first time in a petition for a writ of certiorari. See Taylor, 409 F.3d at 676. Having reconsidered our decision in accordance with the Supreme Court’s instructions, we reinstate our judgment affirming Madrazo-Constante’s conviction and sentence. Footnotes [*] 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.