                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                              FEB 18 2005
                                      TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                 Clerk

 UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,                    No. 04-1345
           v.                                              (D. Colorado)
 MIGUEL ANGEL BRICENO-                               (D.C. No. 03-CR-553-D)
 ROSADO,

                  Defendant - Appellant.


                                ORDER AND JUDGMENT         *




Before TACHA, Chief Judge, ANDERSON , and BALDOCK , Circuit Judges.




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

unanimously that oral argument would not materially assist in the determination

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

therefore 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       This order and judgment is not binding precedent, except under the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.
      Miguel Briceno-Rosado (“Briceno-Rosado”) pleaded guilty to illegal

reentry into the United States by a previously deported alien, in violation of 8

U.S.C. § 1326. He appeals his seventy-seven-month sentence. We REMAND for

resentencing.

      On November 17, 2003, Briceno-Rosado was charged in a one-count

indictment alleging that he was found in the United States on September 15, 2003,

without first gaining the permission of the Attorney General, after being

previously deported for an aggravated felony conviction.   1
                                                               Briceno-Rosado

entered into a plea agreement with the government admitting the conduct charged

in the indictment. In return, the government agreed to recommend a three-level

decrease in his offense level, based on his acceptance of responsibility, and

agreed to recommend a sentence at the bottom of the range mandated by the

United States Sentencing Commission,      Guidelines Manual (“Guidelines”).

      The Presentence Report (“PSR”) concluded that the defendant’s offense

level was 21 and that his criminal history category was IV. The PSR

recommended a sentence of seventy-seven months, the bottom of the applicable

Guidelines range. Briceno-Rosado did not challenge the findings in the PSR at

sentencing.



      1
       Briceno-Rosado was previously convicted of unlawful sexual intercourse
with a minor.

                                           -2-
       Prior to sentencing, however, the defendant filed a motion asking the

district court to declare the Guidelines unconstitutional in light of         Blakely v.

Washington , 124 S. Ct. 2531 (2004).     2
                                             At Briceno-Rosado’s initial sentencing

hearing on July 12, 2004, the district court determined that more analysis of the

question was needed and ordered supplemental briefing. On August 2, 2004, the

district judge issued a written order denying the defendant’s motion and

concluding that Blakely was not implicated because sentencing Briceno-Rosado

did not require him to engage in judicial fact-finding. On August 20, 2004, the

defendant was sentenced to seventy-seven months in prison, followed by three

years of supervised release. He now appeals, again arguing that the Guidelines

are unconstitutional in their entirety, thereby necessitating resentencing.         3




       2
        When Briceno-Rosado raised Blakely both to the district court and to this
court, the Supreme Court had not yet issued United States v. Booker, 125 S. Ct.
738 (2005). However, raising Blakely is sufficient to raise an argument under
Booker. Accordingly, he has preserved an argument under both cases before the
district court and before us, and we hereinafter refer to both cases. We granted
both parties permission to file supplemental briefs on the effect of Booker,
although the government elected not to file one.

       Specifically, Briceno-Rosado contends that (1) Blakely applies to the
       3

Guidelines; (2) the unconstitutional provisions of the Guidelines cannot be
severed; and (3) the activities of the Sentencing Commission in defining new
crimes through enhancements violate non-delegation and separation-of-powers
principles. United States v. Booker, 125 S. Ct. 738 (2005), of course, applied
Blakely to the Guidelines. Briceno-Rosado’s remaining arguments, however, are
now foreclosed by Booker. Id. at 756 (provisions of the federal sentencing statute
that make Guidelines mandatory severed and excised); id. at 754-55 (holding that
Mistretta v. United States, 488 U.S. 361 (1989), which upheld the delegation of
                                                                     (continued...)

                                              -3-
       In Blakely , the Supreme Court reiterated the holding of      Apprendi v. New

Jersey , 530 U.S. 466 (2000), that “‘[o]ther 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.’”

Blakely , 124 S. Ct. at 2536 (quoting   Apprendi , 530 U.S. at 490). In applying this

holding to Washington state’s determinate sentencing scheme,          Blakely clarified

that the “statutory maximum” is “not the maximum sentence a judge may impose

after finding additional facts, but the maximum he may impose         without any

additional findings.”   Id. at 2537. Recently, Booker applied Blakely to the federal

sentencing guidelines, rendering them advisory rather than mandatory.          Booker

held that the Sixth Amendment requires 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 must be admitted by the

defendant or proved to a jury beyond a reasonable doubt.”         Booker , 125 S. Ct. at

756. Because Briceno-Rosado admitted all relevant sentencing facts, no Sixth

Amendment violation occurred in this case.

       That does not end our inquiry, however. In     Booker , the Supreme Court also

“imposed a global remedy for the Sixth Amendment difficulties with the




       (...continued)
       3

authority to the Sentencing Commission, was still valid).

                                           -4-
Sentencing Guidelines, invalidating their mandatory application and instead

requiring district courts to consult them in an advisory fashion.”   United States v.

Labastida-Segura , No. 04-1311, __ F.3d __, 2005 WL 273315, at *1 (10th Cir.

Feb. 4, 2005). In Labastida-Segura , which is nearly identical to this case, we held

that we must apply this remedial holding to the defendant’s sentence even though

no Sixth Amendment violation was involved.         Id. at *2. We also determined that

while sentencing errors are harmless in some circumstances, the district court’s

error of sentencing Labastida-Segura while believing the Guidelines were

mandatory was not harmless:

       Here, where 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 no know what the district
       court would have done after hearing from the parties. Though an
       appellate court may judge whether a district court exercised its
       discretion (and whether it abused that discretion), it cannot exercise
       the district court’s discretion.

Id. Like Labastida-Segura, Briceno-Rosado was sentenced at the bottom of the

sentencing range, and we likewise have no way to determine if the district judge

would have imposed the seventy-seven-month sentence in light of       Booker . In




                                             -5-
fact, we discern no material difference between this case and   Labastida-Segura . 4

Accordingly, we REMAND this case for resentencing.

                                                 ENTERED FOR THE COURT


                                                 Stephen H. Anderson
                                                 Circuit Judge




      4
        The government has submitted a letter indicating its agreement that, in
light of Labastida-Segura, this case must be remanded.

                                           -6-
