F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
August 24, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 04-2306
vs. (D.C. No. CR-03-1405)
(D.N.M.)
UBALDO RAMOS-MARTINEZ,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges. **
Defendant-Appellant Ubaldo Ramos-Martinez appeals from the sentence
imposed upon his conviction of conspiracy in violation of 21 U.S.C. § 846 and
distribution of more than 500 grams of a mixture or substance containing a
detectable amount of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1)
and 842(b)(1) and 18 U.S.C. § 2. At sentencing, the district court, over Mr.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Ramos-Martinez’s objections, applied the Sentencing Guidelines and relied upon
computer print-outs obtained by the probation office in enhancing Mr. Ramos-
Martinez’s sentence for six prior convictions. Mr. Ramos-Martinez’s guideline
imprisonment range was 292 to 365 months and the district court sentenced him
to 292 months imprisonment.
On appeal, Mr. Ramos-Martinez presents two claims. First, following
Blakely v. Washington, 542 U.S. 296 (2004) and United States v. Booker, 125 S.
Ct. 738 (2005), he argues that the district court erroneously sentenced him in
accordance with the sentencing guidelines, which it viewed as mandatory. The
United States, recognizing that this case is controlled by United States v.
Labastida-Segura, 396 F.3d 1140 (10th Cir. 2005), concedes that we should
remand for resentencing. Aplee. Br. at 10.
Mr. Ramos-Martinez also argues that the district court erred in calculating
his criminal history score because it based that determination on records that were
not sufficiently reliable. Although such documentation seems to be an
appropriate basis upon which to base a criminal history score, see United States v.
Simpson, 94 F.3d 1373, 1381 (10th Cir. 1996); United States v. Esparza-Varela,
No. 03-2279, 2004 WL 1280531, at *4 (10th Cir. June 10, 2004), we need not
make that determination because of our remand. If Mr. Ramos-Martinez wishes
to pursue this contention further, he may do so at resentencing.
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We GRANT Mr. Ramos-Martinez’s motion to proceed IFP and REMAND
for re-sentencing.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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