F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
August 16, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-1484
(D. Colorado)
JOSE JESUS ROSALES-RIVERA, (D.Ct. No. CR-04-CR-90-B)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.
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). The case is
therefore ordered submitted without oral argument.
Jose Jesus Rosales-Rivera pled guilty to illegal reentry after deportation
following an aggravated felony conviction in violation of 8 U.S.C. § 1326(a) and
*
This order and judgment is not binding precedent except under the doctrines of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.
(b)(2). He was sentenced to thirty-seven months imprisonment. Rosales-Rivera
appeals his sentence arguing the district court committed plain error in treating
the federal sentencing guidelines as mandatory in light of United States v. Booker,
--U.S.--,125 S.Ct. 738 (2005). Exercising jurisdiction under 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a), we AFFIRM.
I. Factual Background
Rosales-Rivera was originally indicted on March 8, 2004. A superseding
indictment was filed on April 5, 2004, charging the same statutory violation but
alleging a different prior aggravated felony conviction than the original
indictment. 1 Rosales-Rivera pled guilty to the superseding indictment on
September 2, 2004, and a Presentence Investigation Report (PIR) was prepared.
Applying USSG §2L1.2(a), the guideline applicable for illegal reentry, the
probation officer determined the base offense level was 8. 2 The probation officer
then increased the base offense level by 12 pursuant to §2L1.2(b)(1)(B) because
Rosales-Rivera was previously deported subsequent to a conviction for a felony
1
The superseding indictment charged Rosales-Rivera with illegal reentry after
deportation following an aggravated felony conviction in violation of 8 U.S.C. § 1326(a)
and (b)(2). Rosales-Rivera, a citizen of Mexico, was convicted of delivering a controlled
substance (cocaine) in the District Court for Harris County, Texas, on March 12, 1992.
This conviction is an “aggravated felony” as defined by 8 U.S.C. § 1101(a)(43). Rosales-
Rivera was deported from the United States in December 1992 and again in June 1997.
2
Because Rosales-Rivera was sentenced pursuant to the 2003 edition of the United
States Sentencing Guidelines Manual, all guideline citations refer to the 2003 edition,
unless noted otherwise.
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drug trafficking offense. The probation officer reduced the adjusted offense level
by 3 for acceptance of responsibility pursuant to §3E1.1(a) and (b), resulting in a
total offense level of 17. Based on a total offense level of 17 and a criminal
history category of IV, the probation officer calculated the guideline range as
thirty-seven to forty-six months imprisonment. The district court, finding no
reason to depart either upward or downward from the guideline range, sentenced
Rosales-Rivera to thirty-seven months imprisonment on November 10, 2004, and
this appeal followed.
II. Discussion
In Booker, the Supreme Court held 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.” 125
S.Ct. at 756. Post-Booker, district courts must consult the guidelines in
fashioning sentences but are not required to sentence within the guideline range.
United States v. Gonzalez-Huerta, 403 F.3d 727, 731 (10th Cir. 2005) (en banc).
Constitutional Booker error occurs when the district court “re[lies] upon
judge-found facts, other than those of prior convictions, to enhance a defendant's
sentence mandatorily.” Id. By contrast, non-constitutional Booker error occurs
when a sentencing court applies the guidelines in a mandatory fashion, “even
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though the resulting sentence was calculated solely upon facts that were admitted
by the defendant, found by the jury, or based upon the fact of a prior conviction.”
Id. at 731-32.
Rosales-Rivera asserts only non-constitutional Booker error in his case. 3
Because he did not raise his Booker claim in the district court, we review for
plain error. Id. at 732. “Plain error occurs when there is (1) error, (2) that is
plain, which (3) affects substantial rights, and which (4) seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id. (internal
quotation marks omitted). Undoubtedly, the first two prongs of the plain error
test are satisfied. See United States v. Clifton, 406 F.3d 1173, 1181 (10th Cir.
2005) (“Non-constitutional and constitutional Booker errors satisfy the first two
prongs of the plain-error test.”). As to the third prong, we need not answer the
question whether Rosales-Rivera can show prejudice under the third prong
because, even assuming he can, he cannot demonstrate that the district court's
error seriously affected the fairness, integrity, or public reputation of judicial
proceedings (the so-called “fourth prong” of the plain-error test). See United
States v. Cotton, 535 U.S. 625, 632-33 (2002); Gonzalez-Huerta, 403 F.3d at 736.
Non-constitutional Booker error does not merit reversal under the fourth
3
As this court noted in Gonzalez-Huerta, a guideline enhancement based on the
fact of a prior conviction does not implicate the Sixth Amendment under Booker. See
Gonzalez-Huerta, 403 F.3d at 731 n.1.
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prong of the plain-error standard unless it was “a particularly egregious one that
would result in a miscarriage of justice or otherwise call the judiciary into
disrepute unless we remanded.” Gonzalez-Huerta, 403 F.3d at 739. In
Gonzalez-Huerta, the defendant pled guilty to illegal reentry by a deported alien
following an aggravated felony, the same crime at issue in this case. Id. at 730.
He appealed his sentence, arguing that the mandatory application of the guidelines
was plain error. Id. at 731. We held that the mandatory application of the
guidelines was neither “particularly egregious” nor a “miscarriage of justice”
because the resulting sentence was within the national norm as established by the
guidelines and the record was devoid of any evidence indicating a lower sentence
was appropriate. Id. at 738-39.
Here, Rosales-Rivera pled guilty to the underlying offense and the district
court enhanced his sentence based solely on a prior conviction. He received a
sentence within the national norm as established by the guidelines and there is
nothing in the record to indicate the district court would have chosen a lower
sentence under an advisory rather than a mandatory guideline sentencing system.
Thus, this case is indistinguishable from Gonzalez-Huerta. Rosales-Rivera has
failed to show that the mandatory application of the guidelines satisfies the fourth
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prong of the plain-error standard. 4
III. Conclusion
For the reasons stated above, we AFFIRM Rosales-Rivera’s conviction and
sentence.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
4
Rosales-Rivera also asserts the district court committed structural error and we
should presume prejudice. However, these claims are without merit because we
determined in Gonzalez-Huerta, that “non-constitutional Booker error is not structural
error” and the defendant “bears the burden to establish by a reasonable probability based
upon the record on appeal that his substantial rights were affected by the District Court's
mandatory application of the Guidelines.” Id. at 734, 736.
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