                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                              July 20, 2005
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                      Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                          No. 05-3004
          v.                                                (D. Kansas)
 GERARDO RUBEN SALGADO-                            (D.C. No. 04-CR-20103-JWL)
 HERNANDEZ,

               Defendant-Appellant.




                            ORDER AND JUDGMENT *


Before EBEL, McKAY, and HENRY, 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 F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Gerardo Ruben Salgado-Hernandez pleaded guilty to re-entering the United

States illegally following deportation for conviction of an aggravated felony, in


      *
        This order and judgment is not binding precedent, except under the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 10 TH C IR . R. 36.3.
violation of 8 U.S.C. § 1326(a) and (b)(2). The pre-sentence report calculated a

proposed imprisonment range of forty-six to fifty-seven months.

      Mr. Salgado-Hernandez objected at the sentencing hearing, arguing that the

sixteen-point enhancement for a prior “crime of violence” felony conviction was

unconstitutional in light of Blakely v. Washington, 124 S. Ct. 2531 (2004). Prior

to deportation, he was convicted in Texas state court of indecency with a child

under the age of fourteen. The district court overruled his Blakely objection and

sentenced him to forty-six months of imprisonment and three years of supervised

release. When imposing Mr. Salgado-Hernandez’s sentence at the low end of the

Guidelines, the district court stated that “the reasons why the sentence might be

higher . . . have been adequately addressed by [his counsel], and I don’t find any

reason to sentence the defendant any higher than the low end of the guideline

range, which itself is 46 months and a rather severe punishment.” Rec. vol. I,

doc. 23, at 10.

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

filed its decision in United States v. Booker, 125 S. Ct. 738 (2005). Booker’s

holdings apply to all cases on direct review. Id. at 769. As Mr. Salgado-

Hernandez’s counsel concedes, the sentence enhancement for a prior conviction

does not involve a Sixth Amendment constitutional violation. See United States

v. Moore, 401 F.3d 1220, 1224-25 (10th Cir. 2005) (holding that “the government


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need not charge the ‘fact’ of a prior conviction in an indictment and submit it to a

jury,” and “determining whether a given felony constitutes a ‘violent felony’ is a

question of law and not fact”). Like the petitioner in Moore, Mr. Salgado-

Hernandez does not contend that the district court, when deciding if the prior

conviction constituted a violent felony, improperly looked beyond the charging

document under Shepard v. United States, 125 S. Ct. 1254 (2005). See Moore,

401 F.3d at 1225 n.2.

      However, in light of Booker, 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 Mr. Salgado-Hernandez raised the Blakely objection below, we

review the sentencing error for harmlessness. United States v. Labastida-Segura,

396 F.3d 1140, 1143 (10th Cir. 2005).

      This court has determined that where a defendant preserves a non-

constitutional Booker error and the district court, viewing the Guidelines as

mandatory, sentenced him at the bottom of the applicable Guidelines range, we

cannot conclude that the error was harmless:

      [W]here it was already at the bottom of the guidelines range, to say that
      the district court would have imposed the same sentence given the new
      legal landscape (even after consulting the Sentencing Guidelines in an
      advisory capacity) places us in the zone of speculation and
      conjecture–we simply do not know what the district court would have
      done after hearing from the parties. Though an appellate court may

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      judge whether a district court exercised its discretion (and whether it
      abused that discretion), it cannot exercise the district court’s discretion.

Id. Based on Labastida-Segura, the government does not argue harmless error

and agrees with Mr. Salgado-Hernandez that this case should be remanded for

resentencing. Aple’s Br. at 5.

      Accordingly, we REMAND to the district court for resentencing in

compliance with Booker.



                                                Entered for the Court,


                                                Robert H. Henry
                                                Circuit Judge




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