                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                       October 4, 2005
                               TENTH CIRCUIT
                                                                        Clerk of Court

 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

 v.                                                    No. 04-2038
                                                        (D. N.M.)
 JOSE ROLANDO LIZARRAGA-                        (D.Ct. No. CR-03-1705-JC)
 ORDUNO,

       Defendant-Appellant.


           ORDER ON REMAND FROM THE SUPREME COURT
                     OF THE UNITED STATES


Before TACHA, Chief Circuit Judge, and PORFILIO and BRORBY, Senior
Circuit Judges.



      Appellant Jose Rolando Lizarraga-Orduno pled guilty to 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. Lizarraga-Orduno, 118 Fed.

Appx. 439 (10th Cir. Dec. 13, 2004) (unpublished op.) (Lizarraga-Orduno I),

vacated and remanded, 125 S. Ct. 1678 (2005) (Lizarraga-Orduno II). The

district court sentenced him to forty-one months imprisonment after determining

his prior conviction for a drug trafficking crime exceeded thirteen months

imprisonment, warranting a sixteen-level offense increase under United States
Sentencing Commission, Guidelines Manual (U.S.S.G.) § 2L1.2 (b)(1)(A). 1

Lizarraga-Orduno I, 118 Fed. Appx. at 440-41.



      Mr. Lizarraga-Orduno appealed his sentence, contesting for the first time

on appeal the district court's determination his prior conviction exceeded thirteen

months. Id. at 441. Similarly, for the first time on appeal, he raised a claim the

district court applied the enhancement for his prior conviction based on facts not

found by a jury, as required under Blakely v. Washington, 542 U.S. 296, 124 S.

Ct. 2531 (2004). Lizarraga-Orduno I, 118 Fed. Appx. at 440-41. On December

13, 2004, we affirmed his conviction and sentence. Id. at 440, 444. Thereafter,

Mr. Lizarraga-Orduno appealed to the United States Supreme Court. During the

pendency of his appeal, the Supreme Court decided United States v. Booker, 543

U.S. ____, 125 S. Ct. 738 (2005), and thereafter summarily vacated and remanded

our decision in Mr. Lizarraga-Orduno’s case for further consideration in light of

Booker. See Lizarraga-Orduno II, 125 S. Ct. at 1678. At our direction, the

parties filed supplemental briefs on the applicability of Booker. On remand, Mr.



      1
         Section 2L1.2(a) applies to immigration offenses and recommends a base
offense level of 8 for defendants unlawfully entering or remaining in the United
States. It also recommends a sixteen-level increase for those defendants who
were previously deported or unlawfully remained in the United States “after ... a
conviction for a felony that is ... a drug trafficking offense for which the sentence
imposed exceeded 13 months ....” U.S.S.G. § 2L1.2(b)(1)(A).

                                         -2-
Lizarraga-Orduno appeals the sixteen-level enhancement, claiming the district

court committed constitutional plain error by increasing his sentence sixteen

offense levels on the basis of judicial factfinding. He also suggests 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.

We reinstate our prior Order and Judgment and affirm Mr. Lizarraga-Orduno’s

sentence for the following reasons.



                               I. Factual Background

      We first briefly recite those facts relevant for the purpose of disposing of

the Booker issues raised on remand. At his plea hearing, Mr. Lizarraga-Orduno

acknowledged he had been previously deported based on his prior conviction for

an aggravated felony for possession with intent to distribute marijuana.

Lizarraga-Orduno I, 18 Fed. Appx. at 440-41. After Mr. Lizarraga-Orduno pled

guilty to reentry of a deported alien previously convicted of an aggravated felony,

the probation officer prepared a presentence report recommending a sixteen-level

enhancement under U.S.S.G. § 2L1.2 because of Mr. Lizarraga-Orduno’s prior

conviction for a drug trafficking crime for possession with intent to distribute

more than fifty kilograms of marijuana, for which he received a sentence of

thirty-seven months imprisonment and three years supervised release. Id. at 441.


                                         -3-
Applying other sentencing factors, the probation officer calculated Mr. Lizarraga-

Orduno’s total offense level at 21 and his criminal history category at II, for a

final Guidelines range of forty-one to fifty-one months imprisonment. Id.



      Through counsel, Mr. Lizarraga-Orduno did not object to the presentence

report’s factual representations, including his prior thirty-seven-month sentence

for possession with intent to distribute more than fifty kilograms of marijuana.

Id. Again, at the sentencing hearing, neither he nor his counsel objected to the

factual statements in the presentence report, other than to correct a grammatical

error. Id. The district court then accepted the factual findings and Guidelines

applications in the presentence report and found the sixteen-level enhancement

applied. Id. Mr. Lizarraga-Orduno requested the court sentence him at the “low

end of the guidelines,” noting he lived in the United States for thirty-five years,

worked in Albuquerque for a considerable amount of time, and had “a wife and

children” whom he supported and for whom he paid expenses. The district court

responded by stating:

      I understand the problems with the economy in Mexico.
      Unfortunately, we see those in this courtroom every day. It is a sad
      situation, particularly with people who have family ties in this
      country, but the authorities in Washington have determined that you
      are not allowed into this country for any reason based on your prior
      criminal conduct, and I cannot change that. And I can look down
      this chart (i.e., the Guidelines Sentencing Table), there’s some
      discretion given to me to sentence you. So I can sentence you at the

                                          -4-
      low end of what has been determined to be appropriate, which is 41
      months, and that is what I will do.

The district court then applied the bottom of the sentencing range, for a sentence

of forty-one months imprisonment. Id.



      On appeal, we determined, in part, that Mr. Lizarraga-Orduno’s failure to

object to the facts in the presentence report concerning his prior conviction acted

as an admission and therefore, the district court’s reliance on those facts did not

constitute clear error or a particularly egregious or obvious and substantial legal

error that would result in a miscarriage of justice. Id. at 442-43. We further

determined, in part, that Mr. Lizarraga-Orduno’s Blakely claim must fail based on

his failure to object to the presentence report’s finding he served a thirty-seven-

month sentence for his prior conviction, explaining it acted as an admission

leaving no question of fact for a jury or judge to decide. Id. at 443-44. After

determining the district court did not err in applying the § 2L1.2 enhancement, we

affirmed Mr. Lizarraga-Orduno’s conviction and sentence. Id. at 444.



                                   II. Discussion

      On remand, Mr. Lizarraga-Orduno continues to argue “the district court

committed constitutional error that is plain when it imposed a 16-level increase in

sentencing [him] under a mandatory sentencing guidelines regime, on the basis of

                                          -5-
judicial factfinding under the preponderance of the evidence standard.”

Specifically, Mr. Lizarraga-Orduno asserts the intervening Booker decision

requires a jury, not a judge, to determine whether his prior conviction resulted in

a sentence longer than thirteen months. As to his overall sentence length, he

argues:

       [t]here is a reasonable probability that the district court would
       reasonably exercise discretion to sentence [him] outside the
       Guideline range, given [his] sentence at the lowest end of that range,
       the district court’s acknowledgment that it had discretion only to
       impose sentence within the 41-51 month guideline range, and the
       empathy expressed by the court for the “sad situation” which gave
       rise to [his] re-entry offense.

The government counters by pointing out Mr. Lizarraga-Orduno admitted his prior

sentence exceeded thirteen months when he failed to object to the presentence

report. 2



       In United States v. Moore, we held that under Booker the government is not

required to charge in an indictment or prove to a jury either: 1) the existence of

prior convictions; or 2) their classification for the purpose of applying certain

enhancements. 401 F.3d 1220, 1221, 1224-25 & n.2 (10th Cir. 2005). With



       2
         The government also contends the district court files contain the
judgment which imposed a sentence of thirty-seven months, of which we may take
judicial notice. However, given the judgment is not in the record on appeal, we
decline to take such judicial notice.

                                         -6-
respect to the former, concerning the existence of prior convictions, Booker

patently reaffirms Supreme Court precedent that a prior conviction is an exception

to factual jury submissions by stating, “[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.” Booker, 543 U.S. at

___, 125 S. Ct. at 756 (emphasis added). With respect to the characterization of

prior convictions for the purpose of applying certain enhancements, we have

determined it involves a question of law and not fact, so it does not implicate the

Sixth Amendment for the purpose of requiring the characterization of the offense

to be charged in the indictment and proven to a jury. See Moore, 401 F.3d at

1224-26.



      In this case, it is clear the government did not need to charge the “fact” of

Mr. Lizarraga-Orduno's prior conviction in the indictment or submit it to a jury.

See Moore, 401 F.3d at 1224. In addition, Mr. Lizarraga-Orduno does not contest

the characterization of his prior conviction as a drug trafficking conviction, id. at

1224-25, leaving only the fact of the length of the sentence imposed in dispute on

remand. Because a judge, not a jury, may make such factual determinations with

respect to prior convictions, we need only determine if the district court’s factual


                                          -7-
determination Mr. Lizarraga-Orduno’s sentence exceeded thirteen months was

incorrect or otherwise in error under the circumstances in this case. The

government contends no error occurred, given Mr. Lizarraga-Orduno’s failure to

point out any factual errors in the presentence report, which stated he received a

thirty-seven-month sentence and on which the district court relied.



      “Normally, failure to alert the trial court to an error precludes review of

that same issue by this court.” United States v. Saucedo, 950 F.2d 1508, 1511

(10th Cir. 1991) (quotation marks and citations omitted), overruled on other

grounds, Stinson v. United States, 508 U.S. 36 (1993). “However, ‘[p]lain errors

or defects affecting substantial rights may be noticed although they were not

brought to the attention of the court,’” id. (citing Fed. R. Crim. P. 52(b)), but this

plain error exception “is to be ‘used sparingly, solely in those circumstances in

which a miscarriage of justice would otherwise result.’” Id. (quotation marks and

citations omitted). “In order to invoke the [plain error] exception, the error must

be ‘particularly egregious’ ... as well as ‘obvious and substantial.’” Id. (citations

omitted).



      This court has repeatedly held that a factual dispute concerning the

applicability of a particular guideline not brought to the attention of the district


                                          -8-
court constitutes waiver and does not rise to the level of plain error. Id. at 1518.

See also United States v. Yarnell, 129 F.3d 1127, 1137-38 (10th Cir. 1997);

United States v. Farnsworth, 92 F.3d 1001, 1009 n.5 (10th Cir. 1996). We have

applied this waiver principle with respect to facts underlying prior criminal acts,

see United States v. Yates, 22 F.3d 981, 989 (10th Cir. 1994), and note it does not

appear to be directly affected by the rule in Booker because, as previously

discussed, the fact and characterization of prior convictions does not implicate the

Sixth Amendment for the purpose of triggering the Booker rule. 3 See Moore, 401

F.3d at 1224-26. Similarly, a defendant’s obligation under Federal Rule of

Criminal Procedure 32 4 to point out factual inaccuracies concerning the

      3
         Because this case involves a prior conviction, to which Booker does not
apply, we believe the waiver rule as applied here is distinguishable from this
court’s determination that the waiver rule is inapplicable to a defendant’s failure
to object to facts “for purposes of the rights announced in Booker.” United States
v. Bass, 411 F.3d 1198, 1204 n.7 (10th Cir. 2005) (questioning remaining validity
of the waiver rule after Booker with respect to failure to object to facts contained
in the presentence report that pertain to the instant offense and which resulted in a
judicially-found factual enhancement).
      4
         See United States v. Virgen-Chavarin, 350 F.3d 1122, 1132 (10th Cir.
2003) (relying on 18 U.S.C. § 3552(a) and Rule 32 in stating that “accuracy is
paramount in the sentencing process” and explaining the parties have an
obligation to object to inaccuracies in the presentence report as part of the
focused, adversarial development of the factual issues relevant to determining the
appropriate sentence); United States v. Archer, 70 F.3d 1149, 1151 (10th Cir.
1995) (relying on Rule 32 to indicate the defendant must assert contradictory facts
challenging the accuracy of the presentence report to successfully carry the
burden of alleging factual inaccuracies); Yates, 22 F.3d at 989 (holding that only
facts which are contested at sentencing must be established by a preponderance of
                                                                       (continued...)

                                          -9-
characterization of a prior conviction has not been relieved under Booker. Thus,

Mr. Lizarraga-Orduno’s failure at the district court level to object to facts relating

to his prior conviction constitutes waiver of the issue under this court’s clear

precedent, and he presents little, if no, support to persuade us otherwise.



      Nevertheless, even if we did not apply the waiver standard and instead

applied a plain error analysis to the issue which he failed to bring to the district

court’s attention, Mr. Lizarraga-Orduno cannot prevail. Under the plain error

test, an appellate court may correct an error not raised at trial if 1) an error

occurred, 2) that is “plain,” 3) which affects substantial rights, and 4) which

seriously affects the fairness, integrity, or public reputation of the judicial

proceeding. See Johnson v. United States, 520 U.S. 461, 466-67 (1997). In

addressing the first criterion, it is arguable whether the district court committed

any error, given it had no basis to believe the sentence for Mr. Lizarraga-Orduno's

prior conviction did not exceed thirteen months, based on his repeated failure to

dispute the factual representation on that point, especially when it was a

determining factor on whether he received a sixteen-level enhancement. Neither


      4
       (...continued)
the evidence); United States v. Kay, 961 F.2d 1505, 1507 (10th Cir. 1992)
(relying on Rule 32 to find defendant’s failure to raise any factual inaccuracy in
the presentence report constituted waiver).


                                          -10-
can we say the district court erred by failing to sua sponte question such a factual

representation, based again on Mr. Lizarraga-Orduno’s failure to dispute such a

fact. For similar reasons, we cannot say any error in the district court’s

determination was plain or, in other words, “clear or obvious.” Johnson, 520 U.S.

at 467.



      Next, we cannot say the error, if any, affected Mr. Lizarraga-Orduno’s

substantial rights. In analyzing whether an error affects a defendant’s substantial

rights, it is his or her burden to show the error is prejudicial; i.e., the error “must

have affected the outcome of the district court proceedings.” United States v.

Olano, 507 U.S. 725, 734 (1993). In meeting this burden, he must show “a

reasonable probability that, but for [the error claimed], the result of the

proceeding would have been different.” United States v. Dominguez Benitez, 542

U.S. 74, ___, 124 S. Ct. 2333, 2339 (2004) (quotation marks and citations

omitted).



      As we pointed out in our prior decision, Mr. Lizarraga-Orduno has never

offered any contrary evidence or made any statement to establish or clarify

exactly what length of sentence he in fact received. Moreover, if he had made a

timely objection to the factual representation he now disputes and put the district


                                           -11-
court and the government on notice, it is likely the government would have

submitted, or the district court required, the relevant court documents relied on in

the presentence report to establish his prior conviction resulted in a thirty-seven-

month sentence, thereby meeting the § 2L1.2 requisite of exceeding thirteen

months. Thus, Mr. Lizarraga-Orduno has not shown his sentence would have

been different; i.e., not enhanced under § 2L1.2, but for the error he now claims.

Under these circumstances, we cannot say the error, if any, affected Mr.

Lizarraga-Orduno’s substantial rights. Because he fails to meet his burden with

respect to the third prong, it is unnecessary for us to address the last prong, given

all four prongs must be met for successful plain error resolution. See Olano, 507

U.S. at 741. For these reasons, the district court did not err in making the

determination Mr. Lizarraga-Orduno’s sentence for his prior conviction exceeded

thirteen months for the purpose of applying the § 2L1.2 enhancement.



      We next consider Mr. Lizarraga-Orduno’s argument the district court

committed Booker error in mandatorily applying the Sentencing Guidelines. In so

doing, we recognize the Supreme Court in Booker held the Guidelines are now

only advisory. 543 U.S. at ___, 125 S. Ct. at 768-69. Thus, we determine

whether there is a reasonable probability the district court judge would have

determined a lower sentence should be imposed if he had not thought himself


                                         -12-
bound by the mandatory Guidelines. See United States v. Ambort, 405 F.3d 1109,

1120 (10th Cir. 2005). We consider Mr. Lizarraga-Orduno’s challenge for plain

error, given he did not make a challenge to his sentence on Booker-type grounds

to the district court. Id. at 1118.



      The first two factors in our plain error analysis are easily resolved because

the district court clearly committed an error which was plain when it sentenced

Mr. Lizarraga-Orduno under a mandatory, rather than an advisory, sentencing

scheme. United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.) (en

banc), petition for cert. filed (U.S. Sep. 6, 2005) (No. 05-6407). As previously

discussed, in determining the third factor on whether the error affected substantial

rights, the burden is on Mr. Lizarraga-Orduno to show the error is prejudicial;

i.e., the error “must have affected the outcome of the district court proceedings,”

and he must show “‘a reasonable probability that, but for the error claimed, the

result of the proceeding would have been different.’” Ambort, 405 F.3d at 1118

(quotation marks and citations omitted). This circuit has announced a defendant

can meet this burden by demonstrating a reasonable probability that, under the

specific facts of the case as analyzed under the sentencing factors in 18 U.S.C.

§ 3553(a), the district court would reasonably impose a sentence outside the

Guidelines range. See United States v. Dazey, 403 F.3d 1147, 1175 (10th Cir.


                                         -13-
2005.) In Dazey, we explained a defendant might make such a showing “if during

sentencing the district court expressed its view that the defendant’s conduct,

based on the record, did not warrant the minimum Guidelines sentence.” Id.



      In this case, Mr. Lizarraga-Orduno argues his sentence must be remanded

pursuant to our decision in United States v. Labastida-Segura, 396 F.3d 1140,

1143 (10th Cir. 2005), because he was sentenced at the bottom of the Guidelines

range. However, unlike the situation in that case, which involved a harmless

error analysis and placed the burden on the government, id., it is Mr. Lizarraga-

Orduno’s plain error burden to show there is a reasonable probability the district

court judge would have determined a lower sentence should be imposed if he had

not thought himself bound by the mandatory Guidelines. See Ambort, 405 F.3d at

1120. In this case, the district court merely stated it could “look down this chart”

which gave “some discretion” to sentence him and that it could sentence him “at

the low end of what has been determined to be appropriate, which is 41 months,

and that is what I will do.” Under these circumstances, Mr. Lizarraga-Orduno has

not shown a reasonable probability the district court would have imposed a lower

sentence had it not felt constrained by the mandatory Guidelines. Nevertheless,

“[w]e need not determine whether [Mr. Lizarraga-Orduno] can satisfy this burden

because even if he were to meet the third prong, he must also satisfy the fourth


                                         -14-
prong to obtain relief.” Gonzalez-Huerta, 403 F.3d at 736.



      In order to satisfy the fourth prong of the plain error analysis, Mr.

Lizarraga-Orduno must show failure to correct his forfeited error would seriously

affect the fairness, integrity, or public reputation of judicial proceedings. Id. at

732, 736. “[W]e will not notice a non-constitutional error, such as the one in the

case before us, unless it is both ‘particularly egregious’ and our failure to notice

the error would result in a ‘miscarriage of justice.’” Id. at 736 (citations omitted).

This demanding standard is “only [met] in those rare cases in which core notions

of justice are offended.” Id. at 739. We have determined that where a defendant

receives a sentence within the national norm as established by the Guidelines, and

where no further mitigating circumstances exist, the mandatory application of the

Guidelines is not error. Id. at 738-39.



      In this case, Mr. Lizarraga-Orduno received a sentence within the

Guidelines range supported by the facts in his case and within the national norm.

He has pointed to nothing in the record to justify a deviation from the national

norm, to show core notions of justice were offended by the sentence imposed, to

establish the district court’s dissatisfaction with the sentence, or to otherwise

suggest mitigating circumstances warrant a lesser sentence. While Mr. Lizarraga-


                                          -15-
Orduno points out the district court expressed sympathy by acknowledging the

“sad situation” involving the Mexican economy and family ties which bring

deportees back to this country, we have held that sympathy toward a defendant’s

circumstances does not by itself demonstrate “the sentence implicates the kind of

fundamental fairness issues necessary to satisfy the fourth plain-error prong.”

United States v. Sierra-Castillo, 405 F.3d 932, 942 (10th Cir. 2005). Thus, Mr.

Lizarraga-Orduno has failed to meet his burden with respect to the fourth prong

of the plain error analysis.



                                  III. Conclusion

      For the reasons set forth above, we REINSTATE our prior Order and

Judgment and AFFIRM Mr. Lizarraga-Orduno’s sentence.



                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




                                        -16-
