F I L E D
United States Court of Appeals
Tenth Circuit
October 25, 2005
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 04-3398
v. (District of Kansas)
D.C. No. 04-10122-01 JTM
SERGIO NUNEZ-ONTIVEROS,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, Chief Judge, MURPHY and TYMKOVICH, Circuit
Judges.
The defendant pled guilty to illegal reentry by an alien deported
subsequent to a conviction for an aggravated felony. On appeal, he
challenges a 16-level enhancement based on a prior conviction imposed by
*
The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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and judgment is not binding precedent, except under the doctrines of law of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.
the district court. He argues that under United States v. Booker, 125 S.Ct.
738 (2005), the district court erred in believing that the Sentencing
Guidelines are mandatory, and that under Booker and Blakely v.
Washington, 542 U.S. 296 (2004), a prior conviction may not be used to
support a sentence enhancement unless it is admitted by the defendant or
proven beyond a reasonable doubt. We vacate the defendant’s sentence and
remand.
The first issue we address is the government’s motion to enforce the
appellate waiver in the plea agreement. The plea agreement contained the
following waiver of appellate rights:
7. Waiver of Appeal and Collateral Attack. With
the exception noted below, defendant knowingly and
voluntarily waives any right to appeal or collaterally
attack any matter in connection with this
prosecution, conviction and sentence. The
defendant is aware that Title 18, U.S.C. § 3742
affords a defendant the right to appeal the
conviction and sentence imposed. By entering into
this agreement, the defendant knowingly waives any
right to appeal the conviction herein or a sentence
imposed that is within the guideline range
determined appropriate by the court. The defendant
also waives any right to modify, change or challenge
a sentence or manner in which it was determined in
any collateral attack, including, but not limited to, a
motion brought under Title 28, U.S.C. § 2255
[except as limited by United States v. Cockerham,
237 F.3d 1179, 1187 (10th Cir. 2001)] and a motion
brought under Title 18, U.S.C. § 3582(c)(2). In
other words, the defendant waives the right to
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appeal the conviction and sentence imposed in this
case except to the extent, if any, the court departs
upwards from the applicable sentencing guideline
range determined by the court. However, if the
United States exercises its right to appeal the
sentence imposed as authorized by Title 18, U.S.C.
§ 3742(b), the defendant is released from this
waiver and may appeal the sentence received as
authorized by Title 18, U.S.C. § 3742(a).
The exception to this waiver of appellate rights is
that if the sentencing court determines that the
defendant is subject to the 16-level enhancement of
U.S.S.G. § 2L1.2(b)(1)(A), the defendant reserves
the right to a direct appeal of that determination. To
the extent such an appeal requires the defendant to
argue that the Blakely v. Washington case discussed
below in Paragraph 8 precludes the 16-level
enhancement, the parties agree that he hereby
reserves his right to do so.
8. Waiver of Blakely rights. The defendant agrees
to waive any rights that may have been conferred
under Blakely v. Washington, 2004 WL 1402697
(June 24, 2004), and agrees to have the sentence in
his case determined under the U.S. Sentencing
Guidelines (Guidelines). The defendant further
waives any right to have facts that determine the
offense level under the Guidelines alleged in an
indictment and found by a jury beyond a reasonable
doubt; agrees the facts that determine the offense
level will be found by the Court at sentencing by a
preponderance of the evidence and agrees that the
Court may consider any reliable evidence, including
hearsay; and the defendant agrees to waive all
constitutional challenges to the validity of the
Guidelines.
(Emphasis added.)
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The presentence report included a 16-level enhancement under §
2L1.2(b)(1)(A)(vii) because the defendant had previously been convicted
of transporting illegal aliens. The defendant objected to the enhancement,
arguing that the prior conviction had not been charged in the indictment or
proven to a jury beyond a reasonable doubt, as required by Blakely. He did
admit that he was subject to a 12-level enhancement for a sentence of
probation he had received following a prior conviction for the sale of
cocaine.
The court rejected the defendant’s argument because the objection
dealt with a prior conviction and therefore was not within the scope of
Blakely. The resulting sentencing range was 46 to 57 months. The court
sentenced the defendant to 46 months.
The government contends that the appellate waiver meets the
requirements of United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir.
2004) (“the court of appeals, in reviewing appeals brought after a defendant
has entered into an appeal waiver, determine[s]: (1) whether the disputed
appeal falls within the scope of the waiver of appellate rights; (2) whether
the defendant knowingly and voluntarily waived his appellate rights; and
(3) whether enforcing the waiver would result in a miscarriage of justice as
we define herein.”), and that both issues are precluded by the appellate
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waiver.
However, after reviewing the plea agreement, we conclude that the
waiver is not enforceable at all because the waiver provisions are unclear.
These ambiguities are to be read in the defendant’s favor. See Hahn, 359
F.3d at 1325 (“In determining a waiver’s scope, we will strictly construe
appeal waivers and any ambiguities in these agreements will be read against
the Government and in favor of a defendant’s appellate rights.”) (internal
quotation omitted). Accordingly, we conclude that the defendant is not
bound by the appellate waiver.
The district court committed non-constitutional Booker error by
sentencing the defendant through mandatory application of the guidelines.
See United States v. Gonzalez-Huerta, 403 F.3d 727, 731-32 (10th Cir.
2005), cert. denied, ___ S.Ct. ___, No. 05-6407, 2005 WL 229216 (Oct. 17,
2005). Because the defendant raised Blakely in the district court, we
review for harmless error. See United States v. Labastida-Segura, 396 F.3d
1140, 1142-43 (10th Cir. 2005) (noting that a Blakely objection is
sufficient to preserve a non-constitutional Booker error).
Fed. R. Crim. P. 52(a) provides that “[a]ny error, defect, irregularity,
or variance that does not affect substantial rights must be disregarded.”
The error is harmless if it “did not affect the district court’s selection of the
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sentence imposed.” Labastida-Segura, 396 F.3d at 1143 (citation and
quotation omitted). The government has the burden of demonstrating that
the defendant’s substantial rights were not affected, which does not require
proof that the invalid factor was determinative in arriving at the sentence.
Williams v. United States, 503 U.S. 193, 203 (1992).
The facts here are similar to those in Labastida-Segura. In that case,
the defendant was convicted of the same offense as the defendant, unlawful
entry of a previously deported alien. Like the defendant here, the defendant
challenged the constitutionality of the Guidelines at sentencing and was
overruled by the district judge, who found the Guidelines constitutional. In
addition, the district court, as here, imposed the lowest possible sentence
under what it considered to be mandatory Guidelines. We held that the
district court’s error was not harmless and warranted a remand for
resentencing.
Here, where [the sentence imposed] 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 not 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
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the district court’s discretion.
396 F.3d at 1143.
We are left with the same situation as in Labastida-Segura.
Accordingly, as in Labastida-Segura, we hold that the error was not
harmless, and remand for re-sentencing.
The defendant also argues that, under Booker, the nature of his prior
conviction used to enhance his sentence must be either admitted or proven
beyond a reasonable doubt. This contention is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998), and United States v. Moore,
401 F.3d 1220 (10th Cir. 2005) (“[W]e are bound by existing precedent to
hold that the Almendarez-Torres exception to the rule announced in
Apprendi and extended to the Guidelines in Booker remains good law.”).
For the foregoing reasons, we VACATE the defendant’s sentence and
REMAND the case to the district court for resentencing in accordance with
Booker.
Entered for the Court
PER CURIAM
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