                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                      November 10, 2005
                               TENTH CIRCUIT
                                                                           Clerk of Court

 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,                       No. 04-5037
       v.                                              (N.D. Okla.)
 JORGE HERNANDEZ-NORIEGA,                              (03-CR-17-K)

             Defendant-Appellant.




 ORDER ON REMAND FROM THE SUPREME COURT OF THE UNITED
                       STATES


Before KELLY, HENRY, and TYMKOVICH, Circuit Judges.


      Jorge Hernandez-Noriega contends that the district court committed plain

non-constitutional sentencing error when it applied a sixteen-level enhancement

under USSG § 2L1.2(a) to his offense level, as required at the time under the

Guidelines. For the reasons stated herein, we vacate Mr. Hernandez-Noriega’s

sentence and remand for resentencing.



                               I. BACKGROUND

      Mr. Hernandez-Noriega was convicted of reentry of a deported alien

previously convicted of an aggravated felony, in violation of 8 U.S.C. §
1326(a)(1) and (b)(2). See United States v. Hernandez-Noriega, 118 Fed. Appx.

458 (10th Cir. Dec. 15, 2004) (unpublished op.) (“Hernandez-Noriega I”),

vacated and remanded, 125 S. Ct. 1958 (2005) (“Hernandez-Noriega II”). The

district court determined that Mr. Hernandez-Noriega’s prior conviction for a

drug trafficking crime exceeded thirteen months’ imprisonment, warranting a

sixteen-level offense increase under United States Sentencing Commission

Guidelines Manual (USSG) § 2L1.2 (b)(1)(A). This provision mandates a base

offense level of eight and a sixteen-level increase for defendants who were

deported after conviction of a drug trafficking offense with a sentence of more

than thirteen months. USSG § 2L1.2(b)(1)(A). Relying on that determination,

the district court sentenced him to ninety-two months’ imprisonment.

      Mr. Hernandez-Noriega then appealed his conviction, arguing that there

was insufficient evidence to support his conviction under § 1326. We affirmed

his conviction and sentence in Hernandez-Noriega I.

      Thereafter, Mr. Hernandez-Noriega filed a petition for a writ of certiorari

in the United States Supreme Court, asserting that the sentence was erroneous

pursuant to Blakely v. Washington, 124 S. Ct. 2531 (2004). During the pendency

of the Supreme Court proceeding, the Court decided United States v. Booker, 125

S. Ct. 738 (2005). Thereafter, the Court summarily remanded for further

consideration in light of Booker. See Hernandez-Noriega II, 125 S. Ct. at 1958.


                                        -2-
      At our direction, the parties have filed supplemental briefs on the

applicability of Booker. Mr. Hernandez-Noriega now challenges the sixteen-level

enhancement, claiming the district court committed non-constitutional plain error

when it adopted a sixteen-level increase in the offense level under USSG §

2L1.2(b)(1)(A). He argues that a reasonable probability exists the district court

would have sentenced him outside of the Guidelines range under an advisory,

rather than a mandatory, sentencing scheme. For the following reasons, we vacate

Mr. Hernandez-Noriega’s sentence and remand for resentencing.



                                  II. DISCUSSION

      A. Procedural History

      The presentence report (“PSR”) recommended the sixteen-level

enhancement under U.S.S.G. § 2L1.2 because of Mr. Hernandez-Noriega’s 1988

conviction for possession with intent to distribute an unspecified amount of

methamphetamine. Mr. Hernandez-Noriega received a sentence of sixty months’

probation for that offense. His probation was subsequently revoked, and he

served two years in state prison. Rec. vol. II, ¶¶ 12, 25. Applying other

sentencing factors, the probation officer calculated Mr. Hernandez-Noriega’s total

offense level at 24 and his criminal history category at V, for a final Guidelines

range of 92 to 115 months’ imprisonment. Id. ¶ 46.



                                         -3-
       Through counsel, Mr. Hernandez-Noriega did not object to the PSR’s

factual representations, including his prior two-year sentence for possession with

intent to distribute methamphetamine. Counsel recognized that “there just is no

available avenue for departure” and asked for a sentence at the low end of the

range. Second. Supp. Rec. vol. II, at 6 (Tr. Sept. 8, 2003).

       After hearing from the defendant, the district court expressed concern with

the severity of the sixteen-level increase under 2L1.2. The following colloquy

ensured:

       District court:     Well, what’s the basis for the 16-level increase?
       Government:         It’s just that if you have been deported . . . after you
                           had the convictions, they don’t necessarily have to
                           be – the deportation doesn’t have to be necessarily
                           for the drug convictions.
       District court:     And the aggravated felony is what then? . . . So
                           you’re just saying any deportation after any criminal
                           conviction:
       Government:         That’s our understanding of the guidelines, Your
                           Honor.
       District Court:     Well, do you have any case law on that?
       Government:         Not at my fingertips I do not.

Id. at 8.

       The district court later observed that

       the language in this guideline seems confusing . . . . [I]t just doesn’t
       appeal to my sense of fairness that we’re going back to 1988 to pick up
       a conviction that we know very little about on a sentence that the
       defendant was originally given probation for 60 months and then later
       revoked for two years.

Id. at 9 (emphasis added). The district court continued the matter.

                                           -4-
      At a sentencing hearing held on March 3, 2004, the court, after recognizing

that a sentence at the bottom of the guideline range was “appropriate,” applied the

sixteen-level enhancement, with apparent reluctance:

      I think it’s too much, but that’s what we’re faced with under the guidelines.

      It’s just always amazed me that we’re going to house and clothe and
      feed people for the period of time that we’re going to, and then we’re
      going to get them out of the country. Seems like there ought to be a
      better way.

Rec. vol. IV, at 5 (emphasis added).

      The district court sentenced Mr. Hernandez-Noriega to 92 months’

imprisonment.

      B. Standard of Review

      Because Mr. Hernandez-Noriega did not raise a Booker claim before the

district court, we review for plain error. United States v. Gonzalez-Huerta, 403

F.3d 727, 732 (10th Cir. 2005) (en banc). To establish plain error, he must

demonstrate there is (1) error, (2) that is plain and (3) the error affects his

substantial rights. United States v. Dazey, 403 F.3d 1147, 1174 (10th Cir. 2005);

Gonzalez-Huerta, 403 F.3d at 732. If these three prongs are met, we may exercise

our discretion to correct the error if (4) it “seriously affects the fairness, integrity,

or public reputation of judicial proceedings.” Dazey, 403 F.3d. at 1174.

      The government concedes, and we agree, that the first three prongs are met.

We therefore turn to the fourth prong of plain error review. Id.

                                           -5-
      C. Fourth prong analysis

      The standard for fourth-prong error is “formidable.” United States v.

Trujillo-Terrazas, 405 F.3d 814, 820 (10th Cir. 2005). We may only exercise our

discretion when an error is “particularly egregious,” constitutes “a miscarriage of

justice,” and when “core notions of justice are offended.” Gonzalez-Huerta, 403

F.3d at 738. We have identified several non-exclusive factors that may

demonstrate that the fourth prong has been established:

      [1] a sentence increased substantially based on a Booker error, [2] a
      showing that the district court would likely impose a significantly
      lighter sentence on remand, [3] a substantial lack of evidence to support
      the sentence the Guidelines required the district court to impose, and/or
      [4] a showing that objective consideration of the 18 U.S.C. § 3553(a)
      factors warrants a departure from the sentence suggested by the
      Guidelines.

United States v. Thomas, 410 F.3d 1235, 1249 (10th Cir. 2005); Trujillo-Terrazas,

405 F.3d at 820-21 (concluding that the defendant satisfied the fourth prong in a

case of non-constitutional Booker error); United States v. Williams, 403 F.3d

1188, 1200 (10th Cir. 2005) (same). Mr. Hernandez-Noriega bears the burden of

demonstrating that the error satisfies this demanding standard. Gonzalez-Huerta,

403 F.3d at 736.

      1. Substantially increased sentence

      Here, the non-constitutional Booker error unquestionably resulted in Mr.

Hernandez-Noriega receiving a substantially-increased sentence. This factor is



                                         -6-
“ordinarily not present for consideration when a defendant raises a

non-constitutional Booker error.” United States v. Thomas, 410 F.3d 1235, 1249

n.6 (10th Cir. 2005). In this case, however, this factor is pertinent because we are

able to compare the sentence Mr. Hernandez-Noriega received under the

mandatory Guidelines, and the sentencing guideline range he would have been

eligible for had the 1988 conviction not resulted in a mandatory sixteen-level

increase in the offense level. Applying the pre-Booker Guidelines scheme, the

district court sentenced him to ninety-two months’ incarceration. Yet, without the

mandatory imposition of the sixteen-level enhancement for the 1988

methamphetamine conviction, the sentencing range would have been much less:

15-21 months.

      2. Showing of a significantly lower sentence on remand

      Moreover, the district court expressed its dissatisfaction with the

Guidelines’ treatment of the 1988 methamphetamine conviction and with the

Guideline range, and it sentenced Mr. Hernandez-Noriega at the very bottom of

that range. Cf. Trujillo-Terrazas, 405 F.3d at 820-21 (noting sentencing judge’s

expressed dissatisfaction with the application of the Guidelines as a relevant

factor in the plain error analysis); cf. Thomas, 410 F.3d at 1249 (refusing to apply

to fourth prong because “Thomas’s sentence was not increased substantially” and

because the district court was “not convinced the judge would impose a lighter



                                         -7-
sentence on remand”). At the first sentencing hearing, the district court observed

that the mandatory sentence “just doesn’t appeal to my sense of fairness” to “go[]

back to 1988 to pick up a conviction that we know very little about on a sentence

that the defendant was originally given probation for 60 months and then later

revoked for two years.” Second. Supp. Rec. vol. II, at 9. Thus, the record

demonstrates that his sentence “‘would likely change to a significant degree if

[the case] were returned to the district court for discretionary resentencing.’” See

United States v. Lawrence, 405 F.3d 888, 907 (10th Cir. 2005) (quoting

Gonzalez-Huerta, 403 F.3d at 743-44 (Ebel, J., concurring)).

      3. Substantial lack of evidence to support the sentence

      Next, as previously discussed, the district court knew “very little about the”

1988 conviction for which Mr. Hernandez-Noriega initially received probation.

The “aggravated felony” conviction that led to the sixteen-point increase in the

offense level was fourteen years old. Little was known about that offense, but the

fact that Mr. Hernandez-Noriega was initially given a sentence of probation

suggests that the offense was relatively minor compared to the usual drug

trafficking crimes addressed by these provisions of Guidelines.

      4. Sentencing factors set forth in 18 U.S.C. § 3553(a)

      Moreover, the sentencing factors set forth in 18 U.S.C. § 3553(a)—which

have a “new vitality” after Booker, see Trujillo-Terrazas 405 F.3d at



                                         -8-
819—indicate that a sentence below the Guideline range may be warranted. At

the time of his arrest, Mr. Hernandez-Noriega had been gainfully employed at the

same job for three years. The letters furnished to the court indicated Mr.

Hernandez-Noriega’s work ethic and generosity to others. Although the PSR

assigned him a criminal history score of V, his most recent drug offense,

possession of methamphetamine, was committed in 1991. The district court

considered the age of some of Mr. Hernandez-Noriega’s criminal history, and

noted that this weighed in favor of a sentence at the low end of the Guideline

range. United States v. Taylor,   413 F.3d 1146, 1156 (10th Cir. 2005) (noting

that § 3553 “allow[s] a court to consider the personal mitigating characteristics of

the defendant”); Rec. Supp. vol. II, at 5-6. Thus, under the facts of this particular

case, Mr. Hernandez-Noriega has satisfied the fourth prong of the plain error

inquiry.

                                  III. CONCLUSION

      For the foregoing reasons, we VACATE Mr. Hernandez’s sentence and

remand for resentencing.

                                  Entered for the Court,


                                  Robert H. Henry
                                  Circuit Judge




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