UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 04-2075
ROGELIO TRUJILLO-TERRAZAS,
Defendant - Appellant.
ORDER
April 18, 2005
Before, SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.
The opinion filed April 13, 2005, was filed in error. A revised opinion is attached
and is filed nunc pro tunc. Please replace the attached version of the opinion with the one
previously filed.
Entered for the Court
PATRICK FISHER, Clerk of Court
by:
Deputy Clerk
F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 13 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-2075
ROGELIO TRUJILLO-TERRAZAS,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. CR. 03-1997 RB)
Submitted on the briefs.*
Carlos Ibarra-Aguirre, Assistant Federal Public Defender, Las Cruces, New Mexico, for
Defendant-Appellant.
David C. Iglesias, United States Attorney, and Norman Cairns, Assistant United States
Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee.
Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.
McCONNELL, Circuit Judge.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
Mr. Trujillo appeals his sentence of 41 months imprisonment for illegally
reentering the United States after deportation in violation of 8 U.S.C. §
1326(a). Mr. Trujillo argues that his sentence is unconstitutional in light of Blakely v.
Washington, 124 S.Ct. 2531 (2004). We evaluate this claim now that the Supreme Court
has issued its decision in United States v. Booker, 125 S.Ct. 738 (2005). We conclude
that the district court committed plain error in sentencing Mr. Trujillo, and we VACATE
his sentence and REMAND to the district court for resentencing in accordance with
Booker.
I.
On October 8, 2003, a federal grand jury returned an indictment against Mr.
Trujillo, charging him with illegal reentry after deportation. He pled guilty to the
indictment without the benefit of a plea agreement on December 2, 2003. Applying the
Sentencing Guidelines, the probation officer assigned a base offense level of 8, see
U.S.S.G. § 2L1.2(a), and applied a 16-level enhancement because Mr. Trujillo had a prior
Oklahoma conviction for arson, a crime of violence. See U.S.S.G. § 2L1.2(a)(1)(A)(ii).
Mr. Trujillo received a three-level reduction for acceptance of responsibility, U.S.S.G. §
3E1.1, resulting in a total offense level of 21. The district court followed the
government’s suggestion of sentencing Mr. Trujillo to 41 months of incarceration, the
low end of the sentencing range.
At sentencing, the district court judge expressed reservations about imposing the
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sentence required by the then-mandatory Guidelines. A potential source of this hesitation
was the comparatively innocuous nature of Mr. Trujillo’s prior conviction in Oklahoma
for third degree arson. Mr. Trujillo was upset that an ex-girlfriend had begun seeing
someone new, and he acted on his frustration by throwing a lighted match into a 1980
Oldsmobile belonging to his ex-girlfriend’s new love interest. The Oklahoma state court
determined that the appropriate compensation for the fire damage was the paltry sum of
$35.00. After hearing Mr. Trujillo’s plea for leniency, the district court judge explained
that while he was sympathetic to the defendant’s argument, he was bound by the
Guidelines. The judge stated:
Mr. Trujillo, you suggested that this is a lot of time that I want to give
you. You know what? I don’t want to send anybody to jail, and I wish
that I didn’t have to. And the fact is, as [your attorney] has explained to
you, I’m sure, these Sentencing Guidelines are something that we’re all
struggling with, but they say what the minimum is that you have to do.
And I’m sorry, you know, under the circumstances, that I have to do what
I have to do.
Sentencing Transcript, R. Vol. 3 at 5-6. Mr. Trujillo argues that the district court’s
expressed reluctance to impose the sentence required by the Guidelines demonstrates the
plain error in his sentencing.
II.
Mr. Trujillo did not raise the constitutional challenge during sentencing.
Consequently, we review the decision of the district court for plain error. United States
v. Gonzalez-Huerta, ___ F.3d ___, 2005 WL 807008 *3 (10th Cir. 2005) (en banc); cf.
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Booker, 125 S.Ct. at 769 (“[W]e expect reviewing courts to apply ordinary prudential
doctrines, determining, for example, whether the issue was raised below and whether it
fails the ‘plain-error’ test.”). To establish plain error, Mr. Trujillo must demonstrate (1)
that the district court committed error, (2) that the error was plain, and (3) that the plain
error affected his substantial rights. United States v. Cotton, 535 U.S. 625, 631 (2002);
Gonzalez-Huerta, 2005 WL 807008 *3. If the error meets all these conditions, the
reviewing court may exercise discretion to correct the error if it would seriously affect
the fairness, integrity, or public reputation of judicial proceedings to let the error stand.
Cotton, 535 U.S. at 631-32. The analysis is relaxed when applied to potential
constitutional error. United States v. James, 257 F.3d 1173, 1182 (10th Cir. 2001).
1. Error
The district court erred in sentencing Mr. Trujillo. In Booker, the Court extended
the logic of Blakely to the Federal Sentencing Guidelines, holding 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 or a jury verdict must be
admitted by the defendant or proved to a jury beyond a reasonable doubt.” Booker, 125
S.Ct. at 756. To remedy the constitutional infirmity created by applying judge-found
facts to mandatory sentencing guidelines, the Court severed the provision of the federal
sentencing statute making application of the Guidelines mandatory. Id. at 756-57
(excising 18 U.S.C. § 3553(b)(1)). The effect of the remedy in Booker was to render the
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Guidelines advisory. Id. This rule applies to all cases on direct review, id. at 769; thus it
was erroneous for the district court to treat the Guidelines as mandatory in sentencing
Mr. Trujillo.
We stress, however, that the error in this case was not constitutional in nature.
Nothing in Booker—or in the logic of the Sixth Amendment or the Due Process
Clause—suggests that it is unconstitutional for Congress to establish a sentencing
scheme that does not entail judicial discretion. The Booker majority’s holding that the
Guidelines are not mandatory was remedial in nature. See id. at 756-57 (Breyer, J.). The
Court severed the provisions of the statute making the Guidelines mandatory, not
because mandatory sentencing ranges are unconstitutional, but because allowing judges
to decide contested questions of fact, pursuant to a preponderance of the evidence
standard, is unconstitutional when such factfinding leads ineluctably to a higher sentence
than would be warranted by the facts found by the jury or admitted by the defendant. By
rendering the Guidelines discretionary, the Court saved the process of judicial
factfinding from unconstitutionality under the Sixth Amendment. In this case, the
sentencing court did not increase Mr. Trujillo’s sentence by resolving contested
questions of fact; the enhancements to the sentence were purely a product of prior
convictions. The error here was therefore not constitutional in nature. See Gonzalez-
Huerta, 2005 WL 807008 *2-3.
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2. Plain
There is no doubt that the error here is plain. To be plain, an error must be “clear
or obvious” under “well-settled law.” United States v. Whitney, 229 F.3d 1296, 1309
(10th Cir. 2000). An error is plain “where the law at the time of trial was settled and
clearly contrary to the law at the time of appeal.” Johnson v. United States, 520 U.S.
461, 468 (1997). That is the situation here. Because the district court treated the
Guidelines as mandatory, Mr. Trujillo’s sentence is contrary to Booker. Gonzalez-
Huerta, 2005 WL 807008 *3. This observation does not, of course, reflect negatively on
the district court, which was simply applying the law in effect at the time.
3. Affects Substantial Rights
The third prong of plain error analysis inquires whether the error in sentencing
Mr. Trujillo affected his substantial rights. For an error to have affected substantial
rights, “the error must have been prejudicial: It must have affected the outcome of the
district court proceedings.” United States v. Olano, 507 U.S. at 725, 734 (1993). The
burden to establish prejudice to substantial rights is on the party that failed to raise the
issue below. See United States v. Vonn, 535 U.S. 55, 63 (2002); Gonzalez-Huerta, 2005
WL 807008 *3. To demonstrate that the mandatory application of the Guidelines
affected substantial rights, a defendant must show a “reasonable probability” that the
defects in his sentencing altered the result of the proceedings. Cf. U.S. v. Dominguez
Benitez, 124 S.Ct. 2333, 2339 (2004) (“In cases where the burden of demonstrating
6
prejudice . . . is on the defendant seeking relief, we have invoked a standard . . .
requiring the showing of ‘a reasonable probability that, but for [the error claimed], the
result of the proceeding would have been different.’”) (quoting United States v. Bagley,
473 U.S. 667, 682 (1985) (opinion of Blackmun, J.)). Mr. Trujillo can make this
showing by demonstrating a reasonable probability that had the district court applied the
post-Booker sentencing framework, he would have received a lesser sentence.
Prior to Booker, district courts were closely tethered to the Guidelines when
sentencing. Section 3553(b)(1) permitted sentences outside the range determined by the
Guidelines only in a narrow set of circumstances defined by the Sentencing Commission.
After Booker, district courts have a freer hand in determining sentences. While the
Guidelines still exert gravitational pull on all sentencing decisions—district courts must
“consult” the Guidelines, and sentences that unreasonably depart from the suggested
sentencing range are at risk of reversal on appeal, Booker, 125 S.Ct. at 767—district
courts now have more discretion to tailor sentences to the individual circumstances of a
defendant. Booker suggests that the sentencing factors articulated in § 3553(a), which
the mandatory application of the Guidelines made dormant, have a new vitality in
channeling the exercise of sentencing discretion. See id. at 765–66; United States v.
Rodriguez, 398 F.3d 1291, 1301 (11th Cir. 2005); see also United States v. Rodgers, 400
F.3d 640, 641-42 (8th Cir. 2005) (applying § 3553(a) to find a sentence unreasonable).
Applying the sentencing factors listed in § 3553(a) to Mr. Trujillo’s case provides a
7
strong indication that had the district court applied the Booker framework, his sentence
would have been lower and this lower sentence would be reasonable.
In addition to considering the sentencing range suggested by the Guidelines, see
18 U.S.C. § 3553(a)(4), § 3553(a) requires district courts to consider the “history and
characteristics of the defendant,” id. § 3553(a)(1), and “the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found guilty
of similar conduct,” id. § 3553(a)(6). The relatively trivial nature of Mr. Trujillo’s
criminal history is at odds with the substantial 16-level enhancement recommended by
the Guidelines for this conduct. The state court assessed restitution of a mere $35.00 for
Mr. Trujillo’s third degree arson conviction, suggesting a quite minor offense. The
Guidelines, however, look only to the conviction itself rather than the actual conduct
underlying the conviction. This blunter approach means that the Guidelines do not
distinguish between tossing a lighted match through a car window, doing minor damage,
and a more substantial crime of violence such as an arson resulting in the complete
destruction of a building or vehicle. To punish this prior conduct in the same manner
could be seen to run afoul of § 3553(a)(6), which strives to achieve uniform sentences
for defendants with similar patterns of conduct. Cf. Booker, 125 S.Ct. at 757 (explaining
that the Booker remedy endeavors to maintain “a strong connection between the sentence
imposed and the offender’s real conduct”). The disconnect between the newly relevant §
3553(a) factors and the sentence given to Mr. Trujillo leads us to believe that there is a
8
reasonable probability that he would receive a lesser sentence under the new sentencing
regime.
While the § 3553(a) analysis suggests that a departure from the Guideline range
would be permissible post-Booker, the district court’s expression of sympathy for Mr.
Trujillo also implies the district court is inclined to depart. The district court expressed
dissatisfaction with the mandatory character of the Guidelines, stating that “these
Sentencing Guidelines are something that we’re all struggling with, but they say what the
minimum is that you have to do. And I’m sorry, you know, under the circumstances, that
I have to do what I have to do.” Sent. Tr., R. Vol. 3, at 6. The judge’s voiced regret
provides another reason to believe that the plain error here prejudiced Mr. Trujillo.
Accordingly, we conclude that he has carried his burden of demonstrating that the plain
sentencing error affected his substantial rights.
4. Integrity, Fairness, or Public Reputation
If a plain error affects the integrity, fairness, or public reputation of judicial
proceedings, it is in the discretion of the reviewing court to correct the error. Johnson,
520 U.S. at 467. Our analysis under this fourth prong when an error is non-constitutional
is not flippant or perfunctory; the standard is formidable, as we will only exercise our
discretion when an error is “particularly egregious” and the failure to remand for
correction would produce a “miscarriage of justice.” Gonzalez-Huerta, 2005 WL
9
807008 *7 (quoting United States v. Gilkey, 118 F.3d 702, 704 (10th Cir. 1997)).1 A
plain error affecting substantial rights cannot, “without more,” satisfy the fourth prong.
Olano, 507 U.S. at 737; Gonzalez-Huerta, 2005 WL 807008 *6.
In a run of the mill case with non-constitutional Booker error, for example where
a defendant pleads guilty and there is nothing remarkable about his criminal history, the
defendant will often not be able to satisfy this requirement. In such a case, the
defendant’s constitutional rights were not violated, and there is no reason to suppose that
the Guidelines sentence is anything but fair and reasonable. Indeed, a non-constitutional
Booker error is “error” at all only as the serendipitous consequence of the severability
analysis the Supreme Court employed to correct the constitutional infirmity created by
the combination of judicial factfinding and mandatory application of the Guidelines.
Even if a defendant can demonstrate that the district court felt particular sympathy for
him, and might impose a lesser sentence on remand, failing to correct this type of plain
error would not impugn the fairness, integrity, and public reputation of judicial
proceedings. Indeed, a remand might do quite the opposite because another defendant
convicted of an identical crime under identical circumstances could receive a different
The Supreme Court has noted that the term “miscarriage of justice” does not
1
mean the same thing in the plain error context as it does in the collateral review context.
In Olano, the Court explained that in habeas cases a “miscarriage of justice” is
synonymous with the defendant’s actual innocence. 507 U.S. at 736. However, a
defendant can satisfy his burden of meeting the fourth prong of plain error analysis short
of demonstrating that he is actually innocent of the alleged crime. Id.
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sentence from a less sympathetic judge. Cf. Cotton, 535 U.S. 625, 634 (arguing that
correcting a plain error when confronted with overwhelming evidence of guilt would
harm rather than further the fairness and integrity of the judicial system).
In contrast to many cases involving non-constitutional Booker error, correcting
the plain error in Mr. Trujillo’s sentence would not denigrate the fairness and integrity of
the judicial system by magnifying the whim and caprice inherent in less restricted
sentencing determinations. On the contrary, Mr. Trujillo presents a compelling case that
objective consideration of the § 3553(a) factors warrants a departure, and perhaps a
significant departure, from the sentence suggested by the Guidelines. To allow the
mismatch between the sentence suggested by a principled application of the post-Booker
sentencing framework and the actual sentence given to Mr. Trujillo would call into
question the fairness, integrity, and public reputation of judicial proceedings. We thus
believe that it is a sound exercise of our discretion to remand this case for resentencing
despite Mr. Trujillo’s failure to assert error below.
III.
For the reasons set forth above, the judgment of the United States District Court
for the District of New Mexico is VACATED and REMANDED.
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