                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         May 27, 2005
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

v.                                                       No. 04-2253
                                                  (District of New Mexico)
MECIEJ FELIKS GLUCHOWSKI,                        (D.C. No. CR-04-530-RB)
also known as Matthew Gluchowski,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


      After examining the briefs and the appellate record, this panel has

determined unanimously to grant the parties’ request for a decision on the briefs

without oral argument. Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). This 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       This order and judgment is not binding precedent, except under the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.
I.    INTRODUCTION

      Defendant-appellant Meciej Feliks Gluchowski pleaded guilty to illegal

reentry after removal following a conviction for an aggravated felony, in violation

of 8 U.S.C. § 1326(a)(1), (2), and (b)(2). The district court sentenced

Gluchowski to seventy months’ imprisonment. On appeal Gluchowski is

challenging his sentence. Exercising jurisdiction pursuant to 18 U.S.C. § 3742(a)

and 28 U.S.C. § 1291, we remand for resentencing.

II.   BACKGROUND

      On December 22, 2003, the vehicle in which Gluchowski was riding was

stopped by a Catron County, New Mexico deputy sheriff. United States Border

Patrol agents took custody of Gluchowski and his fellow occupants. Upon

questioning, Gluchowski admitted that he was an undocumented alien from

Poland and that he had previously been deported from the United States as an

aggravated felon.

      A federal grand jury returned an indictment against Gluchowski charging

him with being found in the United States after having been removed following

conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a)(1), (2),

and (b)(2). On April 28, 2004, Gluchowski entered a guilty plea without a plea

agreement.




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       The presentence report (“PSR”) established a sentencing range under the

United States Sentencing Guidelines (“U.S.S.G”) of seventy to eighty-seven

months. This was based on an adjusted offense level of twenty-one 1 and a

criminal history category of V. Gluchowski objected to the PSR, arguing that the

sixteen-level enhancement based on an alleged prior conviction violated his Sixth

Amendment rights under Blakely v. Washington, 124 S. Ct. 2531 (2004).

Gluchowski also moved for a downward departure, asserting that the proposed

criminal history category significantly overrepresented the seriousness of his

criminal history. The district court denied Gluchowski’s motion for a downward

departure and rejected his Blakely argument. The court adopted the factual

findings contained in the PSR and sentenced Gluchowski to a prison term of

seventy months, at the bottom of the Guidelines range.

III.   DISCUSSION

       On appeal Gluchowski reasserts the argument he made before the district

court, contending that because the sixteen-level sentencing enhancement was




       1
        The adjusted offense level was calculated as follows: the base offense
level (for illegal reentry) of eight was enhanced sixteen levels pursuant to
U.S.S.G. § 2L1.2(b)(1)(A) because Gluchowski had been deported after a
conviction for a felony drug trafficking offense for which the sentence imposed
exceeded thirteen months, and then reduced three levels for acceptance of
responsibility under U.S.S.G. § 3E1.1.

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based on an alleged prior conviction that was not found by a jury or admitted by

Gluchowski, his sentence violates his Sixth Amendment rights under Blakely.

      During the pendency of this appeal, the Supreme Court decided United

States v. Booker, in which the Court extended its holding in Blakely to apply to

the federal Sentencing Guidelines. 125 S. Ct. 738, 756 (2005). The Court held

that to satisfy the Sixth Amendment, “[a]ny fact (other than a prior conviction)

which is necessary to support a sentence exceeding the maximum authorized by

the facts established by a plea of guilty or a jury verdict must be admitted by the

defendant or proved to a jury beyond a reasonable doubt.” Id. Similarly, the

Supreme Court has held, prior to Booker, that 8 U.S.C. § 1326(b)(2), which

authorizes sentence enhancements, is a penalty provision and does not define a

separate crime. Almendarez-Torres v. United States, 523 U.S. 224, 226 (1998).

“Consequently, neither the statute nor the Constitution requires the Government

to charge the factor that it mentions, an earlier conviction, in the indictment.” Id.

at 226-27. This court has recently recognized that Almendarez-Torres remains

good law in the aftermath of Booker. United States v. Moore, 401 F.3d 1220,

1224 (10th Cir. 2005). Thus, because the existence of a prior conviction is not a

fact that must be proven to a jury beyond a reasonable doubt or admitted by a

defendant, Gluchowski’s sentence does not violate the Sixth Amendment. See id.

at 1223-24.


                                          -4-
      Although Gluchowski’s sentence does not involve a Sixth Amendment

violation, the “sentencing court [] err[ed] by applying the Guidelines in a

mandatory fashion, as opposed to a discretionary fashion.” United States v.

Gonzalez-Huerta, 403 F.3d 727, 731-32 (10th Cir. 2005) (en banc). Because

Gluchowski raised Blakely below, this sentencing error is reviewed for

harmlessness. United States v. Labastida-Segura, 396 F.3d 1140, 1143 (10th Cir.

2005). The government, however, has not asserted the error is harmless. See

United States v. Lang, __ F.3d __, No. 04-4165, 2005 WL 834669, at *4 (10th

Cir. Apr. 12, 2005).

IV.   CONCLUSION

      For the foregoing reasons, we REMAND the case for resentencing pursuant

to Booker.

                                       ENTERED FOR THE COURT



                                       Michael R. Murphy
                                       Circuit Judge




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