F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
October 6, 2005
TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 04-1504
v. District of Colorado
SAUL JIMENEZ-JIMENEZ, also (D.C. No. 04-CR-272-N)
known as Alberto Jimenez, also known
as Alberto Jimenez-Aguilar,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.
Saul Jimenez-Jimenez, a Mexican citizen, pled guilty to illegally re-
entering the United States after deportation. At sentencing, the district court
denied Mr. Jimenez-Jimenez’s motion for downward departure and sentenced him
to 77 months in prison. Mr. Jimenez-Jimenez appeals his sentence under United
States v. Booker, 125 S. Ct. 738 (2005), claiming that the district court committed
plain error by sentencing him under the mandatory guidelines regime. Because
*
This order and judgment is not binding precedent, except under the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.
we find that the district court’s sentence did not affect Mr. Jimenez-Jimenez’s
substantial rights, we affirm the district court’s decision.
Factual and Procedural Background
In 2002, Mr. Jimenez-Jimenez was convicted in the District Court, Pueblo
County, Colorado, of the felony offense of unlawful possession with intent to
distribute a schedule II controlled substance, an “aggravated felony” as defined in
8 U.S.C. § 1101(a)(43). On October 2, 2002, following the state court conviction,
Mr. Jimenez-Jimenez was ordered deported from the United States by the then-
Immigration and Naturalization Service. He was transported to Mexico on
October 8, 2002. On June 9, 2004, officers of the Pueblo Police Department
found Mr. Jimenez-Jimenez in Pueblo, Colorado. They arrested him for giving a
false name and for having small quantities of suspected drugs in his possession.
On June 23, 2004, Mr. Jimenez-Jimenez was charged with illegal re-entry after
deportation and after committing an aggravated felony, to which he pled guilty on
September 2, 2004.
At the sentencing hearing, the district court denied Mr. Jimenez-Jimenez’s
request for a downward departure based on the factors stated in 18 U.S.C. §
3553(b); the victim’s conduct; and coercion or duress. The district court adopted
the pre-sentence report and sentenced Mr. Jimenez-Jimenez at the bottom of the
recommended Guidelines range, to 77 months in prison. Although Mr. Jimenez-
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Jimenez did not raise a Booker objection to his sentence, the district court
nonetheless stated that “the court would impose the same sentence even if the
guidelines were set aside and the court were to impose a discretionary sentence
within the statutory maximum.”
Mr. Jimenez-Jimenez appeals his sentence, claiming that the district court’s
mandatory application of the Sentencing Guidelines constituted reversible error
pursuant to Booker.
Discussion
Mr. Jimenez-Jimenez concedes that he did not raise the Booker issue in the
district court, and, therefore, we review his sentence for plain error. United
States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (en banc). “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. (quotation omitted).
There are two types of Booker error: constitutional Booker error and non-
constitutional Booker error. Id. at 731-32. Constitutional Booker error occurs
when a sentencing court mandatorily increases a sentence on the basis of judge-
found facts other than the fact of a prior conviction. Id. at 731. Non-
constitutional Booker error, in contrast, occurs when a sentencing court applies
the Guidelines in a mandatory, rather than discretionary fashion, even though the
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sentence was calculated solely upon facts admitted by the defendant, found by a
jury, or based upon a prior conviction. Id. at 731-32.
Mr. Jimenez-Jimenez claims that the district court committed non-
constitutional Booker error by imposing his 77-month sentence, which was at the
bottom of the Guidelines range of 77 to 96 months, pursuant to the then-
mandatory Guidelines. As the government concedes, this mandatory application
of the Guidelines constitutes error that is plain. See id. at 732. However, to
satisfy the third prong of plain error analysis--that the sentence affected Mr.
Jimenez-Jimenez’s substantial rights--Mr. Jimenez-Jimenez must show that the
error was prejudicial. United States v. Trujillo-Terrazas, 405 F.3d 814, 819 (10th
Cir. 2005). The burden to establish prejudice rests upon the party that failed to
raise the issue below. Id. Thus, Mr. Jimenez-Jimenez must show a “‘reasonable
probability’ that the defects in his sentencing altered the result of the
proceedings.” Id. (quoting United States v. Dominguez Benitez, 542 U.S. 74
(2004)).
Mr. Jimenez-Jimenez contends that he satisfies the third prong of the plain
error test because non-constitutional Booker error constitutes structural error,
requiring reversal without a showing of prejudice. After Mr. Jiminez-Jimenez
submitted his brief, however, this Court, sitting en banc, held that non-
constitutional Booker error is not structural error. Gonzalez-Huerta, 403 F.3d at
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734. Therefore, Mr. Jimenez-Jimenez’s structural error claim lacks merit. Mr.
Jimenez-Jimenez properly concedes that he was not prejudiced by the district
court’s mandatory application of the Guidelines. The district court’s Statement of
Reasons for Sentence forecloses any possibility that Mr. Jimenez-Jimenez would
have received a different sentence under a discretionary Guidelines regime.
United States v. Serrano-Dominguez, 406 F.3d 1221, 1224 (10th Cir. 2005)
(holding that non-constitutional Booker error does not affect substantial rights
where the district court stated at sentencing that it would impose the same
sentence without the Guidelines). Here, the district court explained that it “would
impose the same sentence even if the guidelines were set aside and the court were
to impose a discretionary sentence within the statutory maximum.” ®. Vol. IV, p.
4.) Because nothing in the record suggests that Mr. Jimenez-Jimenez would
receive a different sentence on remand, the district court’s mandatory application
of the Guidelines did not affect his substantial rights.
Finding that the sentence imposed by the district court did not constitute
plain error, we dismiss Mr. Jimenez-Jimenez’s appeal. The judgment of the
United States District Court for the District of Colorado is AFFIRMED.
Entered for the Court,
Michael W. McConnell
Circuit Judge
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