                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           APR 25 2005
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                       No. 04-2171
 ESEQUEIL SALAZAR-                                 (D.C. No. CR 01-1651 JP)
 SAMANIEGA,                                            (D. New Mexico)

           Defendant-Appellant.




                                 ORDER AND JUDGMENT       *




Before BRISCOE , HOLLOWAY , and MURPHY , 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.

       This is an appeal by defendant Esequeil Salazar-Samaniega of his sentence



       This order and judgment is not binding precedent, except under the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.
following a prior remand by this court for resentencing. We again remand for

resentencing.

      Defendant was found guilty of possessing cocaine with intent to distribute,

in violation of 21 U.S.C. § 841 (a)(1) and (b)(1)(B). He was sentenced to 78

months in prison, which included an upward adjustment for obstruction of justice

resulting from the district court’s finding that he committed perjury at the

suppression hearing. The district court reduced his sentence for acceptance of

responsibility even though defendant forced the government to trial. On direct

appeal, defendant contended the district court erred in enhancing his sentence for

obstruction of justice under U.S.S.G. § 3C1.1, in failing to apply the “safety

valve” adjustment under U.S.S.G. § 5C1.2(5), and in refusing to conclude he was

a “minor” or “minimal” participant under U.S.S.G. § 3B1.2. The government

cross-appealed, contending the court erred in adjusting his sentence downward for

acceptance of responsibility under U.S.S.G. § 3E1.1. In his direct appeal, which

challenged only defendant’s sentence, this court affirmed on the issues raised by

defendant, but remanded for resentencing based on the government’s cross-

appeal. United States v. Salazar-Samaniega, 361 F.3d 1271 (10th Cir. 2004).

      On June 24, 2004, defendant was resentenced. The district court applied

the sentencing guidelines and determined the adjusted guideline range was 30, the

criminal history category was I, and the resulting guideline range was 97-121


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months. The court sentenced defendant at the bottom of the range to a term of 97

months.

      The United States Supreme Court filed its ruling in Blakely v. Washington,

128 S. Ct. 2531 (2004), on the same date that defendant was resentenced.

Counsel for defendant filed a Rule 35(a) motion to correct sentence on June 30,

2004, citing Blakely and contending the district court had violated defendant’s

Sixth Amendment rights by finding defendant had obstructed justice by

committing perjury. The court did not rule on the motion and defendant filed a

notice of appeal challenging the sentence.

      While this case was pending on appeal, the United States Supreme Court

filed its ruling in United States v. Booker, 125 S. Ct. 738 (2005), on January 12,

2005. Booker held that it applied to all direct criminal appeals then pending. In

response to the ruling, this court ordered the parties in this case to file

supplemental briefs to address Booker.

      The parties are in agreement that defendant has properly preserved

Blakely/Booker error and that a remand for resentencing under our recent decision

in United States v. Labastida-Segura, 396 F.3d 1140, 1143 (10th Cir. 2005),

(applying harmless error review) is required.

      Remanded for resentencing in accordance with Booker. The mandate shall




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issue forthwith.

                       Entered for the Court

                       Mary Beck Briscoe
                       Circuit Judge




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