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

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 04-2270
          v.                                       District of New Mexico
 JOSE GOMEZ-CARDENAS,                              (D.C. No. CR-04-1181)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before HARTZ, SEYMOUR, and McCONNELL, Circuit Judges.


      Defendant Jose Gomez-Cardenas appeals his sentence of 46 months’

imprisonment for illegally reentering the United States in violation of 8 U.S.C. §

1326. Because his sentencing took place during the period of uncertainty prior to

United States v. Booker, 543 U.S. 220 (2005), the district court entered alternative

sentences of equal length: 46 months as an application of the Guidelines, or 46

months if the mandatory Guidelines were held unconstitutional. Mr. Gomez-

Cardenas argues that the mandatory application of the Federal Sentencing


      *
       This order and judgment is not binding precedent, except under the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.
Guidelines during his sentencing was unconstitutional in light of Booker. He also

claims that the district court violated his Sixth Amendment right to a jury trial

when it enhanced his sentence on the basis of a judge-found fact that he had been

previously convicted of a felony that was a crime of violence.

      Both of these claims are foreclosed by controlling circuit precedent. See

United States v. Serrano-Dominguez, 406 F.3d 1221, 1224 (10th Cir. 2005)

(holding that because “[t]he district court applied the sentencing methodology

suggested in Booker and concluded that even if the Guidelines were not

mandatory [the defendant] would receive the same sentence[,] the error in his

sentence is harmless”); United States v. Moore, 401 F.3d 1220, 1225 (10th Cir.

2005) (holding that “determining whether a given felony constitutes a ‘violent

felony’ is a question of law and not fact, [and therefore] the Sixth Amendment

does not require that determination to be made by a jury”).

      The sentence of Mr. Gomez-Cardenas is AFFIRMED.

                                                Entered for the Court,

                                                Michael W. McConnell
                                                Circuit Judge




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