UNITED STATES of America, Plaintiff-Appellee, v. Francisco Javier CRUZ, Defendant-Appellant, 418 F.3d 481

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before SMITH and WIENER, Circuit Judges. PER CURIAM: This court affirmed Francisco Cruz’s conviction and sentence. United States v. Cruz, 388 F.3d 150 (5th Cir.2004). The Supreme Court vacated and remanded for further consideration in light of United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Cruz v. United States, — U.S. -, 125 S.Ct. 1969, 161 L.Ed.2d 846 (2005). We requested and received supplemental letter briefs addressing the impact of Booker.

Cruz was convicted by a jury of importation and possession with intent to distribute 20 kilograms of cocaine. The jury was instructed that it must find beyond a reasonable doubt that “the substance was, in fact, cocaine and weighed 20 kilograms, more or less, 45 pounds, more or less.” Cruz was sentenced to 210 months’ imprisonment and five years’ supervised release.

Cruz claims there is error under Booker because he “was sentenced under a Guidelines range greater than that authorized solely by the jury’s verdict, based upon a net-drug-weight finding made by the district court by (Presumably) only a preponderance of the evidence.” Further, Cruz asserts Booker error “because Mr. Cruz was sentenced under the assumption of a mandatory Guidelines system that was held unconstitutional in Booker Cruz concedes that review is only for plain error, because he made no objection in the district court based on Booker or on Blakely v.

Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), on which Booker was based. See United States v. Mares, 402 F.3d 511, 520 (5th Cir.2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517). “An appellate court may not correct an error the defendant failed to raise in the district court unless there is ‘(1) error, (2) that is plain, and (3) that affects substantial rights.’ ” Id. (quoting United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). I.

The government claims there is no Booker error to satisfy the first prong, because “Cruz’s guidelines calculation did not include any enhancement based on extra-verdict facts.” His base offense level of 34 was identified because it is the level for drug offenses involving “at least 15KG but less than 50KG of Cocaine.” As the government points out, there was sufficient evidence from which the jury could determine, beyond a reasonable doubt, that the net weight exceeded the 15 kilograms necessary to invoke offense level 34.

For example, one of the agents testified that the cocaine bricks that were recovered weighed 20.52 kilograms. As we concluded in this appeal, “it appears quite unlikely that the difference between the net weight of the cocaine alone, and the cocaine in its thin packing exceeded the 5.52 kilograms that would be required in order to make a difference in Cruz’s sentence.” Cruz, 388 F.3d at 157-58. There is no Booker error based on any lack of sufficient findings by a jury beyond a reasonable doubt. II.

Cruz fares better in the second argument presented in his supplemental brief, which is that he was unconstitutionally sentenced under a guidelines regime that was understood to be mandatory, in contravention of Booker. We conclude that he is due a remand. A. The government claims that Cruz is barred from arguing now that sentencing under a mandatory guideline system is unconstitutional. The government cites United States v.

Taylor, 409 F.3d 675, 676 (5th Cir.2005) (per curiam), in which we held that, absent extraordinary circumstances, we will not consider Booker arguments raised for the first time in a petition for writ of certiorari. Cruz did raise, in this court, before we issued our opinion, arguments based on Blakely. Cruz has sufficiently raised the issue for us to consider it. In applying Taylor to assertions of Booker error made for the first time in certiorari petitions, we generally have applied the bar where the defendant has failed to raise any Booker- or Blakely-related issues before filing his cer-tiorari petition.

Here, however, Cruz did raise sentencing issues based on Blakely, so we will consider all his assertions of Blakely and Booker error now on remand. B. “Technically, this is a ‘Fanfan error, not a Booker error.’ ” United States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir. 2005) (per curiam) (referring to Ducan Fanfan, the second defendant in the consolidated opinion in Booker). See United States v. Villegas, 404 F.3d 355, 364 (5th Cir.2005) (per curiam) (discussing the difference between Booker and Fanfan error).

The third prong of the plain-error test requires, under Mares, that “the defendant rather than the government bears the burden of persuasion with respect to prejudice.” Mares, 402 F.3d at 521 (citing United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). To show that his substantial rights are affected, Cruz would have to “point[ ] to ... evidence in the record suggesting that the district court would have imposed a lesser sentence under an advisory guidelines system.” Taylor, 409 F.3d at 677 (citations omitted).

In other words, “the pertinent question is whether [the defendant] demonstrated 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. To meet this standard, the proponent of the error must demonstrate a probability “sufficient to undermine confidence in the outcome.” United States v. Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2333, 2340, 159 L.Ed.2d 157 (2004). Cruz has satisfied that standard.

He made a motion for downward departure, to which the court responded, “To depart I would have to deviate from the impositions ... of the Sentencing Guideline criminal history range.” After Cruz’s allocution, the court stated the following: “You finally made it to the big court. And the big court is governed by the Sentencing Guidelines. Nobody in this room can do anything for you.” The court then imposed the minimum sentence under the applicable guideline range. This is similar to the situation we treated in United States v. Monreal-Monreal, No. 04-40547, 2005 WL 1412980, 134 Fed. Appx. 726, 2005 U.S.App.

LEXIS 11496 (5th Cir. June 16, 2005) (per curiam) (unpublished). There, as here, the court sentenced the defendant at the low end of the applicable range and stated that it had no latitude to reduce the sentence further. We held that “[b]ecause [defendant] can point to a statement from the district court demonstrating a likelihood that he would have received a lesser sentence under an advisory application of the sentencing guidelines, he has shown that the error affected his substantial rights and has met the third prong of the plain error test.” Id. at 728 (citing United States v.

Pennell, 409 F.3d 240, 245-46 (5th Cir.2005)). “Because [defendant] has shown the likelihood that the error in this case increased his sentence, he has shown that the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. at 728 (citing Pennell, 409 F.3d at 246). Accordingly, the judgment of sentence is VACATED and REMANDED for resen-tencing. The judgment of conviction is AFFIRMED for the reasons expressed in our initial opinion. . E.g., United States v.

Ogle, 415 F.3d 382, 383 (5th Cir.2005) (per curiam) (stating that Booker issues were waived "[b]ecause [defendant] did not raise any Booker-related challenges to his sentence until his petition for certiorari" and because in his certiorari petition he “challenged for the first time the constitutionality of the Sentencing Guidelines as applied to him”); United States v. Kennedy, No. 03-11334, 137 Fed.Appx. 685, 2005 WL 1458261, 2005 U.S.App. LEXIS 12672, at *5 (5th Cir.

June 21, 2005) (per curiam) (unpublished) (declining to consider Booker issues because defendant "raised alleged Booker error for the first time in his petition for writ of certiorari"); United States v. Higginbotham, No. 04-50018, 2005 WL 1427690, 137 Fed. Appx. 665, 2005 U.S.App.. LEXIS 11788, at *2-*3 (5th Cir. June 20, 2005) (per curiam) (unpublished) (refusing to consider Booker issues because defendant "raised no sentencing issues in his [initial] appeal to this court” and raised in his certiorari petition, "for the first time in any forum, Booker-related sentencing issues"); United States v.

Madrazo-Constante, No. 04-40374, 134 Fed.Appx. 731, 2005 WL 1427683, 2005 U.S.App. LEXIS 11862, at *2 (5th Cir. June 20, 2005) (per curiam) (unpublished) (declining to consider Booker question because defendant "challenged the constitutionality of the Sentencing Guidelines as applied to him for the first time in his petition fer writ of certiorari”); United States v. Elizarraraz, No. 03-40728, 133 Fed.Appx. 985, 2005 WL 1415553, 2005 U.S.App. LEXIS 11712, at *2 (5th Cir.

June 17, 2005) (per curiam) (unpublished) (refusing to consider Booker issues where defendant "challenged the constitutionality of the Sentencing Guidelines as applied to him for the first time in his petition for a writ of certiorari”); United States v. Marquez-Gomez, No. 04-50154, 134 Fed.Appx. 728, 2005 WL 1421135, 2005 U.S.App. LEXIS 11733, at *3 (5th Cir. June 17, 2005) (per curiam) (unpublished) (declining to consider Booker issues because defendant "did not raise any Booker-related challenges to his sentence until his petition for certiorari”); United States v.

Santillana, No. 03-40975, 134 Fed.Appx. 716, 2005 WL 1404432, 2005 U.S.App. LEXIS 11329, at *2 (5th Cir. June 15, 2005) (per curiam) (unpublished) (refusing to address Booker issues because "[f]or the first time in his petition for writ of certiorari, [defendant] challenged the constitutionality of is sentence based on the then-recent holding in Blakely”)-, United States v. Rubio, No. 03-40837, 135 Fed.Appx. 662, 2005 WL 1391109, 2005 U.S.App. LEXIS 11167, at *2-*3 (5th Cir. June 13, 2005) (per curiam) (unpublished) (same); United States v.

Gutierrez, 133 Fed.Appx. 157, 157 (5th Cir. 2005) (per curiam) (unpublished) (stating that we "will not review” claim "[b]ecause [defendant] did not raise any Boo/cer-related challenges to his sentence until his petition for certiorari”). . We need not consider Cruz’s remaining arguments, which are (1) that due process forbids the retroactive application of Booker’s remedial holding to him, see United States v. Scroggins, 411 F.3d 572, 576 (5th Cir.2005); and (2) that Booker error is structural or presumed prejudicial, see Martinez-Lugo, 411 F.3d at 601, United States v.

Malveaux, 411 F.3d 558, 561 n. 9 (5th Cir.2005). He recognizes, in any event, that these issues are foreclosed by the cases cited, and he raises them only to preserve them for possible further review.