F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 18 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 04-1345
v. (D. Colorado)
MIGUEL ANGEL BRICENO- (D.C. No. 03-CR-553-D)
ROSADO,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, Chief Judge, ANDERSON , and BALDOCK , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore submitted without oral argument.
This order and judgment is not binding precedent, except under the
*
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Miguel Briceno-Rosado (“Briceno-Rosado”) pleaded guilty to illegal
reentry into the United States by a previously deported alien, in violation of 8
U.S.C. § 1326. He appeals his seventy-seven-month sentence. We REMAND for
resentencing.
On November 17, 2003, Briceno-Rosado was charged in a one-count
indictment alleging that he was found in the United States on September 15, 2003,
without first gaining the permission of the Attorney General, after being
previously deported for an aggravated felony conviction. 1
Briceno-Rosado
entered into a plea agreement with the government admitting the conduct charged
in the indictment. In return, the government agreed to recommend a three-level
decrease in his offense level, based on his acceptance of responsibility, and
agreed to recommend a sentence at the bottom of the range mandated by the
United States Sentencing Commission, Guidelines Manual (“Guidelines”).
The Presentence Report (“PSR”) concluded that the defendant’s offense
level was 21 and that his criminal history category was IV. The PSR
recommended a sentence of seventy-seven months, the bottom of the applicable
Guidelines range. Briceno-Rosado did not challenge the findings in the PSR at
sentencing.
1
Briceno-Rosado was previously convicted of unlawful sexual intercourse
with a minor.
-2-
Prior to sentencing, however, the defendant filed a motion asking the
district court to declare the Guidelines unconstitutional in light of Blakely v.
Washington , 124 S. Ct. 2531 (2004). 2
At Briceno-Rosado’s initial sentencing
hearing on July 12, 2004, the district court determined that more analysis of the
question was needed and ordered supplemental briefing. On August 2, 2004, the
district judge issued a written order denying the defendant’s motion and
concluding that Blakely was not implicated because sentencing Briceno-Rosado
did not require him to engage in judicial fact-finding. On August 20, 2004, the
defendant was sentenced to seventy-seven months in prison, followed by three
years of supervised release. He now appeals, again arguing that the Guidelines
are unconstitutional in their entirety, thereby necessitating resentencing. 3
2
When Briceno-Rosado raised Blakely both to the district court and to this
court, the Supreme Court had not yet issued United States v. Booker, 125 S. Ct.
738 (2005). However, raising Blakely is sufficient to raise an argument under
Booker. Accordingly, he has preserved an argument under both cases before the
district court and before us, and we hereinafter refer to both cases. We granted
both parties permission to file supplemental briefs on the effect of Booker,
although the government elected not to file one.
Specifically, Briceno-Rosado contends that (1) Blakely applies to the
3
Guidelines; (2) the unconstitutional provisions of the Guidelines cannot be
severed; and (3) the activities of the Sentencing Commission in defining new
crimes through enhancements violate non-delegation and separation-of-powers
principles. United States v. Booker, 125 S. Ct. 738 (2005), of course, applied
Blakely to the Guidelines. Briceno-Rosado’s remaining arguments, however, are
now foreclosed by Booker. Id. at 756 (provisions of the federal sentencing statute
that make Guidelines mandatory severed and excised); id. at 754-55 (holding that
Mistretta v. United States, 488 U.S. 361 (1989), which upheld the delegation of
(continued...)
-3-
In Blakely , the Supreme Court reiterated the holding of Apprendi v. New
Jersey , 530 U.S. 466 (2000), that “‘[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.’”
Blakely , 124 S. Ct. at 2536 (quoting Apprendi , 530 U.S. at 490). In applying this
holding to Washington state’s determinate sentencing scheme, Blakely clarified
that the “statutory maximum” is “not the maximum sentence a judge may impose
after finding additional facts, but the maximum he may impose without any
additional findings.” Id. at 2537. Recently, Booker applied Blakely to the federal
sentencing guidelines, rendering them advisory rather than mandatory. Booker
held that the Sixth Amendment requires that “[a]ny fact (other than a prior
conviction) which is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty must be admitted by the
defendant or proved to a jury beyond a reasonable doubt.” Booker , 125 S. Ct. at
756. Because Briceno-Rosado admitted all relevant sentencing facts, no Sixth
Amendment violation occurred in this case.
That does not end our inquiry, however. In Booker , the Supreme Court also
“imposed a global remedy for the Sixth Amendment difficulties with the
(...continued)
3
authority to the Sentencing Commission, was still valid).
-4-
Sentencing Guidelines, invalidating their mandatory application and instead
requiring district courts to consult them in an advisory fashion.” United States v.
Labastida-Segura , No. 04-1311, __ F.3d __, 2005 WL 273315, at *1 (10th Cir.
Feb. 4, 2005). In Labastida-Segura , which is nearly identical to this case, we held
that we must apply this remedial holding to the defendant’s sentence even though
no Sixth Amendment violation was involved. Id. at *2. We also determined that
while sentencing errors are harmless in some circumstances, the district court’s
error of sentencing Labastida-Segura while believing the Guidelines were
mandatory was not harmless:
Here, where it was already at the bottom of the guidelines range, to
say that the district court would have imposed the same sentence
given the new legal landscape (even after consulting the Sentencing
Guidelines in an advisory capacity) places us in the zone of
speculation and conjecture—we simply do no know what the district
court would have done after hearing from the parties. Though an
appellate court may judge whether a district court exercised its
discretion (and whether it abused that discretion), it cannot exercise
the district court’s discretion.
Id. Like Labastida-Segura, Briceno-Rosado was sentenced at the bottom of the
sentencing range, and we likewise have no way to determine if the district judge
would have imposed the seventy-seven-month sentence in light of Booker . In
-5-
fact, we discern no material difference between this case and Labastida-Segura . 4
Accordingly, we REMAND this case for resentencing.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
4
The government has submitted a letter indicating its agreement that, in
light of Labastida-Segura, this case must be remanded.
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