                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             June 17, 2005
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                        No. 04-2186
                                                        (D. New Mexico)
 FRANCISCO ALFREDO ACOSTA-                          (D.Ct. No. CR-04-190 RB)
 LUNA,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.



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

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      On February 25, 2004, Francisco Acosta-Luna pled guilty to an indictment



      *
          This order and judgment is not binding precedent except under the doctrines of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.
charging illegal re-entry in violation of 8 U.S.C. § 1326(a) and (b)(1). The

indictment alleged Acosta-Luna had been previously convicted of a felony 1 and

deported. The Presentence Investigation Report (PIR) calculated a base offense

level of 8, see USSG §2L1.2(a), an upward adjustment of four levels due to a

prior deportation after conviction of a felony, see USSG § 2L1.2(b)(1)(D), and a

downward adjustment of two levels for acceptance of responsibility, see USSG

§3E1.1, resulting in a total offense level of 10. 2 The PIR calculated a criminal

history category of IV. The applicable guideline range was fifteen to twenty-one

months. 3 The PIR identified no departure issues. At sentencing on July 7, 2004,

without objection or additional argument from the parties, the court adopted the

PIR’s factual findings and application of the guidelines and sentenced Acosta-

Luna to fifteen months imprisonment, the low end of the guideline range.

Acosta-Luna appeals on the ground his sentence violates the rule announced in

Blakely v. Washington, -- U.S. --, 124 S.Ct. 2531 (2004). Exercising jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we AFFIRM.



      1
        Acosta-Luna had previously been convicted of illegal re-entry in violation of 8
U.S.C. § 1326.
      2
        The PIR and the eventual sentence applied the November 2003 edition of the
United States Sentencing Guidelines. See United States Sentencing Commission,
Guidelines Manual (Nov. 2003).
      3
       The offense carried a maximum authorized sentence of ten years. See 8 U.S.C. §
1326(b)(1).

                                           -2-
      In Blakely, the Court applied its decision in Apprendi v. New Jersey, 530

U.S. 466, 490 (2000) (“Other than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a reasonable doubt.”) to invalidate,

under the Sixth Amendment, Washington’s application of its sentencing

guidelines. 4 In United States v. Booker, -- U.S. -- , 125 S.Ct. 738, 755-56 (2005),

the Court extended its ruling in Blakely to invalidate the federal sentencing

guidelines insofar as they were mandatory. 125 S.Ct. at 746. It held that “[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. at 756. The Court concluded the guidelines would not

offend the Constitution if advisory only. Id. at 750. To this end, in the remedial

portion of its opinion, the Court excised those provisions mandating their

application. Id. at 756-57. The Court indicated its decision was applicable to all


      4
        In Blakely, the trial court enhanced a standard sentence under Washington’s
sentencing guidelines. The facts necessary to support the enhancement were neither
admitted by the defendant nor proven to a jury beyond a reasonable doubt. Even though
the enhanced sentence did not exceed the statutory ceiling of imprisonment for the
offense, the Court invalidated it under the Sixth Amendment. Blakely, 124 S.Ct. at 2537-
38. In doing so, the Court clarified that “the statutory maximum for Apprendi purposes is
the maximum sentence a judge may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant.” Id. at 2537 (quotation marks and emphasis
omitted).

                                           -3-
cases, like this one, on direct review. 5 Id. at 769.

      Applying Booker, we have stated:

      [T]here are two distinct types of error that a court sentencing prior to
      Booker could make. First, a court could err by relying upon
      judge-found facts, other than those of prior convictions, to enhance a
      defendant's sentence mandatorily. As Booker makes clear, the Sixth
      Amendment prohibits this practice. As a matter of convenience, we
      will refer to such an error as a constitutional Booker error. Second, a
      sentencing court could err by applying the Guidelines in a mandatory
      fashion, as opposed to a discretionary fashion, even though the
      resulting sentence was calculated solely upon facts that were
      admitted by the defendant, found by the jury, or based upon the fact
      of a prior conviction. While this type of sentence does not violate
      the Sixth Amendment, such a sentence is nonetheless impermissible
      because the Court severed the portion of the Sentencing Reform Act
      that required the mandatory application of the Guidelines. We will
      refer to this second type of error as a non-constitutional Booker error.

United States v. Gonzalez-Huerta, 403 F.3d 727, 731-32 (10th Cir. 2005) (en

banc) (quotation marks and citations omitted). Irrespective of the type of error

involved, Booker does not necessitate a remand for resentencing in all instances.

Instead, “reviewing courts [are] to apply ordinary prudential doctrines,

determining, for example, whether the issue was raised below and whether it fails

the plain-error test.” Booker, 125 S.Ct. at 769 (quotation marks omitted).

      Applying these principles to the case presented, it is clear there is no

constitutional Booker error. This is because the rule announced in



      5
       Acosta-Luna filed his appellate briefs after Blakely was decided and before
Booker was decided.

                                           -4-
Booker specifically excludes from its application the fact of a prior conviction

(the only enhancement applied in this case). To boot, Acosta-Luna admitted to

his prior conviction.

       As to non-constitutional Booker error, inasmuch as Acosta-Luna did not

object at sentencing, we apply the plain error test. “Plain error occurs when there

is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4)

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

proceedings.” Gonzalez-Huerta, 403 F.3d at 732 (internal quotation marks

omitted). We enjoy discretion to notice plain error. See F ED . R. C RIM . P. 52(b).

       “Booker errors satisfy the first two prongs of the plain-error test.” United

States v. Clifton, 406 F.3d 1173, 1181 (10th Cir. 2005). “Satisfying the third

prong of plain-error review--that the error affects substantial rights--usually

means that the error must have affected the outcome of the district court

proceedings.” Gonzalez-Huerta, 403 F.3d at 732 (internal quotation marks

omitted). It is the appellant’s burden to make this showing. Id. at 733. “To meet

this burden, the appellant must show a reasonable probability that, but for the

error claimed, the result of the proceeding would have been different.” Id.

(internal quotation marks omitted).

      As a result of Booker, the provisions of 18 U.S.C. § 3553(a), unconstrained




                                           -5-
by mandatory application of the guidelines, are now preeminent in sentencing. 6


       6
        Factors to be considered in imposing sentence. The court shall impose a
sentence sufficient, but not greater than necessary, to comply with the purposes set forth
in paragraph (2) of this subsection. The court, in determining the particular sentence to
be imposed, shall consider –

              (1)    the nature and circumstances of the offense and the history
                     and characteristics of the defendant;

              (2)    the need for the sentence imposed –

                     (A)    to reflect the seriousness of the offense, to promote
                            respect for the law, and to provide just punishment for
                            the offense;

                     (B)    to afford adequate deterrence to criminal conduct;

                     (C)    to protect the public from further crimes of the defendant; and

                     (D)    to provide the defendant with needed educational or
                            vocational training, medical care, or other correctional
                            treatment in the most effective manner;

              (3)    the kinds of sentences available;

              (4)    the kinds of sentence and the sentencing range established for –

                     (A)    the applicable category of offense committed by the
                            applicable category of defendant as set forth in the guidelines
                            ....

       (5)    any pertinent policy statement –

                     (A)    issued by the Sentencing Commission . . . .

              (6)    the need to avoid unwarranted sentence disparities among defendants
                     with similar records who have been found guilty of similar conduct;
                     and

                                            -6-
We have carefully examined the record. We observe trial counsel agreed with the

court’s sentence, sought no departures and requested only that the court exercise

its discretion to run the sentence concurrent with a related term of imprisonment,

a request the court denied. 7 Furthermore, the court expressed no dissatisfaction

with the mandatory guideline sentence. Such a record provides no basis from

which to conclude Acosta-Luna’s sentence would have been different under an

advisory scheme in which the factors expressed in § 3553(a) are controlling.

Therefore, the third prong of the plain error test is not satisfied.

       For like reasons, Acosta-Luna cannot satisfy the fourth prong of the plain

error test. We will not notice non-constitutional Booker error under the fourth

prong “unless it is both particularly egregious and our failure to notice the error

would result in a miscarriage of justice.” Id. at 736 (internal quotation marks

omitted). This standard is demanding, and the appellant bears the burden of


                (7)    the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a).
       7
           In denying the request to run the sentences concurrently, the court stated:

       You know, there certainly is much merit in what you have to say . . . but I
       just have a sense that given his history it might prevent another illegal
       reentry for some period of time to impose a consecutive sentence in this
       case. The guidelines call for it. I realize that they are advisory and not
       binding, obviously, but policy statement, but I think it’s an appropriate
       sentence here.

(R. Vol. III at 6.)

                                               -7-
proof. Id. at 737. When a sentence, like Acosta-Luna’s, is within the national

norm established by the guidelines and the record is bereft of any evidence to

support a reduced sentence, the standard is not met. See id. at 738-39.

      Acosta-Luna has failed to demonstrate plain error. Accordingly, we

AFFIRM the district court’s judgment.

                                       Entered by the Court:

                                       Terrence L. O’Brien
                                       United States Circuit Judge




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