relief and the fourth prong was not met). “Under the fourth prong of plain-error review, a court may exercise its discretion to notice a forfeited error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. If “non-constitutional Booker error” is involved, as in this case, the standard for satisfying the fourth prong is “demanding” — the defendant must show that the error is “particularly egregious” and that our failure to notice it would result in a “miscarriage of justice.” Dazey, 403 F.3d at 1178 (quotations omitted): Gonzalez-Huerta, 403 F.3d at 736-37. We have recognized that in most cases involving “non-constitutional Booker error” the defendant will be unable to satisfy the fourth prong. See Trujillo-Terrazas, 405 F.3d at 820-21 (<HOLDING>). Mata has not met this demanding standard.
holding the burden is on the defendant to demonstrate the error satisfies each prong of the plain error test holding that the defendant necessarily bears the burden of satisfying the third prong of the plain error test holding that even if the error complained of was structural and affected substantial rights the fourth prong of olano was not met because of the overwhelming and essentially uncontroverted evidence of petitioners guilt holding that the ij and bia did not err in addressing only one prong of the kaplun test because the petitioners failure to meet either prong is dispositive recognizing the difficulty in establishing the fourth prong in cases involving nonconstitutional booker error but finding that defendant had satisfied the fourth prong