                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          March 3, 2006
                                   TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                           Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 04-1325
          v.                                            (D. Colorado)
 ALFONSO ARMENTA-                                 (D.C. No. 04-CR-006-RB)
 ARREDONDO, also known as
 Geronimo Alfonso Armenta,

               Defendant - Appellant.


                             ORDER AND JUDGMENT         *




Before TACHA, Chief Circuit Judge , HARTZ , and TYMKOVICH , Circuit
Judges.


      Alfonso Armenta-Arredondo pleaded guilty to a one-count indictment

charging a violation of 8 U.S.C. § 1326(a) and (b)(2), illegal reentry after being

previously deported following conviction for an aggravated felony. The



      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
presentence investigation report (PSR) suggested a base offense level of eight, a

three-level downward adjustment for acceptance of responsibility, and a 12-level

increase under United States Sentencing Guidelines (USSG) § 2L1.2(b)(1)(B) for

a prior felony drug-trafficking conviction. Mr. Armenta-Arredondo objected to

application of the enhancement, arguing that he was a juvenile at the time of the

conviction. In the alternative, he moved for a downward departure on the basis

that his criminal history was overrepresented. The district court denied the

objection and the departure motion, and sentenced him to 27 months’

imprisonment, the bottom of the guidelines range. He now appeals his sentence,

contending that (1) the district court misinterpreted the guidelines in applying the

12-level enhancement, and (2) remand for resentencing is required under Booker

v. United States, 543 U.S. 220 (2005). We affirm.

I.    INTERPRETATION OF GUIDELINE

      USSG § 2L1.2(b)(1)(B) states: “If the defendant previously was deported

. . . after . . . a conviction for a felony drug trafficking offense for which the

sentence imposed was 13 months or less, increase by 12 levels.” This provision,

however, “does not apply to a conviction for an offense committed before the

defendant was eighteen years of age unless such conviction is classified as an

adult conviction under the laws of the jurisdiction in which the defendant was

convicted.” Id. cmt. n.1(A)(iv).


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      On May 26, 1987, Mr. Armenta-Arredondo was sentenced in California for

sale or transportation of marijuana. The PSR indicated that Mr. Armenta-

Arredondo “reports that he was tried as an adult as he claimed to be 21 years old

at the time of his arrest.” R. Vol. IV. at 5. At sentencing, his counsel stated that

he “sustained a conviction when he said he was 21 years old, but he was really

15.” R. Vol. II at 5. Although the district judge was “cynical,” id. at 8, he

inspected a birth certificate showing that Mr. Armenta-Arredondo was 15 at the

time of the conviction, found it to be self-authenticating under Fed. R. Evid.

902(4), and admitted it into evidence. The district judge then ruled that the

record showed that Mr. Armenta-Arredondo was convicted and sentenced as an

adult in California, and that he could not collaterally attack that conviction in

federal court. The plain language of the guidelines, the district judge said,

required application of the 12-level enhancement. We agree.

      We recently held that “with the exception of a collateral attack based on the

complete denial of counsel, a district court sentencing a defendant under 8 U.S.C.

§ 1326(b)(2) and USSG § 2L1.2(b)(1)(A) cannot consider a collateral attack on a

prior conviction.” United States v. Delacruz-Soto, 414 F.3d 1158, 1167 (10th Cir.

2005). Mr. Armenta-Arredondo does not dispute that he was represented by

counsel. Instead, he contends that he is not attacking the validity of his prior

conviction, only its classification as an adult conviction. He asserts that at the


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time of his conviction there was no provision in California law whereby a

15-year-old child could be tried as an adult for a marijuana sale. That may be

true, but regardless of how he characterizes his argument, he is attacking the

validity of his prior conviction. If he was only 15, then, by his own argument, he

could not have been tried as an adult and his conviction would be invalid. That

issue, however, has never been put before the courts of California. The birth

certificate presented to the district court does nothing more than show that he

might have a valid basis on which to attack his prior conviction, but he must do

so in a California court. The district court did not err in applying the 12-level

enhancement.

II.   BOOKER v. UNITED STATES

      Mr. Armenta-Arredondo’s opening brief argued that his sentence was

unconstitutional under Blakely v. Washington, 542 U.S. 296 (2004). The Supreme

Court then decided Booker v. United States, 543 U.S. 220 (2005), which was

addressed by the government in a supplemental brief and by Mr. Armenta-

Arredondo in his reply brief. Neither Blakely nor Booker was raised below. Our

review is therefore for plain error.

      This case involves what this court has identified as nonconstitutional

Booker error. See United States v. Gonzalez-Huerta, 403 F.3d 727, 731-32 (10th

Cir. 2005). That is, the district court’s only error was in “applying the Guidelines


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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.” Id. at

731-32. The district court was called upon to determine whether Mr. Armenta-

Arredondo’s prior conviction was classified as an adult conviction by California,

but this was a question for the court, not the jury. See United States v. Moore,

401 F.3d 1220, 1225 (10th Cir. 2005) (whether prior conviction was a violent

felony is question for court). The court made no other findings that enhanced the

sentence.

      “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). Nonconstitutional error calls for a more rigid

application of the plain-error test. United States v. Dazey, 403 F.3d. 1147, 1174

(10th Cir. 2005) (“We conduct this analysis less rigidly when reviewing a

potential constitutional error.” (internal quotation marks omitted)).

      The first two prongs of the plain-error test are satisfied when the

sentencing judge applied the guidelines in a mandatory fashion. Gonzalez-

Huerta, 403 F.3d at 732. The defendant’s burden on the third prong is to show

that the error affected the outcome of the proceeding. Id. In cases of


                                          -5-
nonconstitutional error this can be done only by “demonstrating a reasonable

probability that, under the specific facts of his case as analyzed under the

sentencing factors of 18 U.S.C. § 3553(a), the district court judge would

reasonably impose a sentence outside the Guidelines range.” Dazey, 403 F.3d at

1175; see also United States v. Clifton, 406 F.3d 1173, 1181 (10th Cir. 2005)

(“[A] defendant can show a non-constitutional Booker error affected substantial

rights with evidence of (1) a disconnect between the § 3553(a) factors and his

sentence, and (2) the district court’s expressed dissatisfaction with the mandatory

Guidelines sentence in his case.”).

      Whether the district judge would impose a sentence below the guidelines

range is also a key consideration under the fourth prong of the plain-error test.

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

district court would simply reimpose the same sentence on remand, or whether

instead the sentence would likely change to a significant degree if the case were

returned to the district court for discretionary resentencing, is one factor to

consider in determining whether the defendant can satisfy the fourth plain-error

prong.” (internal quotation marks and brackets omitted)). The fourth prong of the

plain-error test places an exceptionally high burden on the defendant. Dazey, 403

F.3d at 1178 (defendant must make an “exceptional showing” before

nonconstitutional-error case will be remanded). “In an instance of non-


                                          -6-
constitutional error the standard for satisfying the fourth prong of the plain error

test is demanding. A party that fails to raise an argument in the district court

must show that allowing a non-constitutional error to stand would be particularly

egregious and would constitute a miscarriage of justice.” Id. (internal quotation

marks and citation omitted). Because the fourth prong imposes such a high

burden, our Booker plain-error cases are often resolved on this prong rather than

the third. Gonzalez-Huerta, 403 F.3d at 736 (“We need not determine whether

Mr. Gonzalez-Huerta can satisfy this burden because even if he were to meet the

third prong, he must also satisfy the fourth prong to obtain relief.”).

      Mr. Armenta-Arredondo has not satisfied the fourth prong. Nothing in the

record indicates that the district judge would impose a lower sentence on remand.

He stated that “in preparing a fair and just sentence” he had considered all

necessary factors, including those set forth in 18 U.S.C. § 3551. R. Vol. II at 15.

The judge rejected Mr. Armenta-Arredondo’s motion for a downward departure

on the basis that his criminal history was overrepresented because he had been

considered an adult in California, no other argument has been presented why a

lower sentence would be justified, and the judge expressed no misgivings about

the sentence. In this circumstance, “remand would be an exercise in futility.”

United States v. Magallanez, 408 F.3d 672, 686 (10th Cir. 2005).

Mr. Armenta-Arredondo has failed to show that the mandatory application of the


                                          -7-
guidelines “affect[ed] the fairness, integrity, or public reputation” of his

sentencing. Gonzalez-Huerta, 403 F.3d at 732 (internal quotation marks omitted).




III.   CONCLUSION

       We affirm the judgment of the district court.


                                                Entered for the Court


                                                Harris L Hartz
                                                Circuit Judge




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