F I L E D
United States Court of Appeals
Tenth Circuit
December 21, 2005
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT Clerk of Court
UNITED STATES of AMERICA,
Plaintiff-Appellee,
No. 04-2281
v.
(D.C. No. CR-04-26-JB)
(D. N.M.)
DAGOBERTO RAMOS-RUIZ,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before EBEL, HENRY and MCKAY, Circuit Judges.
Defendant-Appellant Dagoberto Ramos-Ruiz pleaded guilty to illegal
reentry after deportation following an aggravated felony. On appeal, he alleges
that he is entitled to be resentenced in light of United States v. Booker, 543 U.S.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
220 (2005), because the district court mandatorily imposed a sentence according
to the Federal Sentencing Guidelines. We disagree.
I. Factual Background
On October 4, 2003, United State Boarder Patrol agents encountered Mr.
Ramos in southwestern New Mexico near the Santa Teresa Port of Entry. Ramos
told the agents he was a citizen of Honduras, and immigration records revealed
that he had been deported from the United States on three previous occasions.
Prior to his most recent deportation, Mr. Ramos had been convicted of assault
with a deadly weapon in California state court.
On January 8, 2004, a federal grand jury indicted Mr. Ramos for illegal
reentry after deportation following an aggravated felony, and Mr. Ramos pleaded
guilty to the indictment on March 8, 2004. The PSR assigned a base offense level
of eight to Mr. Ramos’ conviction pursuant to U.S.S.G. § 2L1.2(a). It then
assigned a sixteen-level enhancement, pursuant to § 2L1.2(b)(1)(A)(iii), because
Mr. Ramos had been convicted of a crime of violence—assault with a deadly
weapon—and a three-level reduction for acceptance of responsibility pursuant to
§ 3E1.1. With a criminal history category III, Mr. Ramos’ Guideline sentencing
range was forty-six to fifty-seven months in prison. Mr. Ramos objected to the
PSR based on Blakely v. Washington, 542 U.S. 296 (2004).
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At the sentencing hearing, the district court overruled Mr. Ramos’ Blakely
objection. The court then adopted the PSR’s recommendations and sentenced Mr.
Ramos to forty-six months in prison, the low end of the Guideline range. The
court also imposed an alternative sentence in the event the Guidelines were found
unconstitutional of forty-six months in prison. Mr. Ramos timely filed his appeal.
II. Discussion
Sentencing Mr. Ramos pre-Booker, the district court committed non-
constitutional Booker error by applying the Guidelines in a mandatory fashion. 1
See United States v. Gonzales-Huerta, 403 F.3d 727, 731 (10th Cir. 2005) (en
banc). Mr. Ramos preserved that error by raising a Blakely objection. See United
States v. Labastida-Segura, 396 F.3d 1140, 1142-43 (10th Cir. 2005). We
therefore review for harmless error. Id.
Non-constitutional Booker error is harmless when “we are not required to
engage in any speculation . . . because the district court explained exactly what it
would do if the Guidelines were found unconstitutional.” United States v.
Corchado, 427 F.3d 815, 821 (10th Cir. 2005). Thus, where, as here, the district
court imposes an alternative sentence in a sentencing regime in which the
guidelines are advisory rather than mandatory and that sentence is identical to the
1
The record does not indicate that any constitutional Booker error
occurred, and Mr. Ramos raises only non-constitutional in his appeal.
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sentence imposed under a mandatory Guideline regime, non-constitutional error
does not warrant a remand. See United States v. Serrano-Dominguez, 406 F.3d
1221, 1223-24 (10th Cir. 2005). “Although the district court did not specify that
it was applying the sentencing methodology suggested in Booker—namely
consultation of the advisory Guidelines and the factors listed in 18 U.S.C.
§ 3553(a)—we know that the court consulted the Guidelines and adopted the
findings in the PSR, which analyzed several of the factors set forth in 18 U.S.C.
§ 3553(a)” in sentencing Mr. Ramos. See id.; see also United States v. Rines, 419
F.3d 1104, 1107 (10th Cir. 2005), pet. for cert. filed (U.S. Nov. 14, 2005) (No.
05-7719) (recognizing that the district court need not “march through § 3553(a)’s
sentencing factors” before we uphold a sentence).
III. Conclusion
Because the district court announced an identical alternative sentence,
which applied the methodology suggested in Booker, we AFFIRM Mr. Ramos’
sentence.
ENTERED FOR THE COURT
David M. Ebel
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Circuit Judge
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