                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            July 14, 2005
                                TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                        No. 04-2132
          v.                                              (D. of N.M.)
 JOSE REYES SANCHEZ-SANCHEZ,                      (D.C. No. CR-03-2470-RB)

               Defendant-Appellant.


                           ORDER AND JUDGMENT            *




Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges.            **




      Jose Reyes Sanchez-Sanchez appeals the 46-month sentence he received

resulting from his illegal reentry into the United States, in violation of 8 U.S.C.

§ 1326. Sanchez-Sanchez asserts he should be re-sentenced because        Blakely v.

Washington , 124 S. Ct. 2531 (2004) and   United States v. Booker , 125 S. Ct. 738

(2005), both of which the Supreme Court handed down after Sanchez-Sanchez


      *
         This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
pled guilty, make it clear his sentence violates his Sixth Amendment rights. We

find Sanchez-Sanchez’s rights were not violated and affirm.

                                 I. BACKGROUND

      In September 2003, Sanchez-Sanchez was arrested after illegally entering

the United States. He admitted he was a citizen of Mexico and was in the United

States illegally. Authorities discovered Sanchez-Sanchez had been deported on

four prior occasions, his most recent deportation resulting from a conviction for

importing less than 50 kilograms of marijuana.

      The government charged Sanchez-Sanchez with, and he pled guilty to,

illegal reentry after being deported as a result of a conviction for an aggravated

felony in violation of 8 U.S.C. § 1326(a)(1), (2) and (b)(2). Prior to sentencing,

Sanchez-Sanchez filed a motion for downward departure. He argued that

downward departure was warranted because his reentry was necessary to care for

his ailing parents and that he suffered from various illnesses and disabilities.

Although the district court found Sanchez-Sanchez’s case a sympathetic one, it

determined that other cases in which no downward departure was granted were

equally sympathetic. Thus, on May 25, 2004, the district court denied Sanchez-

Sanchez’s motion and, based on his crime, criminal history, and acceptance of

responsibility, sentenced Sanchez-Sanchez to 46 months in prison (the low-end of

the relevant United States Sentencing Guidelines range).


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       Though Sanchez-Sanchez did not object at the time the district court

entered his sentence, he now claims his sentence is unconstitutional. Sanchez-

Sanchez asserts both Blakely and Booker require us to remand his case for re-

sentencing because his sentence, which was determined under a mandatory

sentencing scheme, violates his Sixth Amendment rights.

                                       II. ANALYSIS

       We review a sentence imposed under the Guidelines pre-         Booker for plain

error when a defendant fails to object to his sentence.       United States v. Gonzalez-

Huerta , 403 F.3d 727, 732. (10th Cir. 2005). To prove plain error, an appellant

must prove that (1) the district court committed error, (2) the error was plain, and

(3) the error affected the appellant’s substantial rights.     See Johnson v. United

States , 520 U.S. 461, 466-67 (1997). Only after an appellant demonstrates all

three elements of plain error may we then exercise our discretion to notice the

error, but we will only exercise our discretion if “the error seriously affect[s] the

fairness, integrity, or public reputation of judicial proceedings.”     Id. at 467

(internal quotation marks omitted).

       In Booker , the Court found the Guidelines unconstitutional because they

were mandatory. 125 S. Ct. at 750. To remedy the problem, the Court excised

certain portions of the Guidelines that made them mandatory and declared

henceforth the Guidelines would be advisory in their application.        Id. at 764-65.


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Thus, it was error for the court to impose a sentence under the mandatory

Guidelines. See Gonzalez-Huerta , 403 F.3d at 731. However, Booker recognized

this error occurred in two distinct forms.    See id. One type of error,

“constitutional error,” occurs when a judge determines facts, other than the fact of

a prior conviction, and uses those facts to enhance a sentence beyond the

maximum allowed based on a jury conviction or guilty plea.         See id. The other

type of error,“non-constitutional error,” occurs when a court sentences a

defendant under the mandatory Guidelines.          See id. Importantly, non-

constitutional error does not involve a situation where the sentencing judge

determined facts that enhanced a sentence.         See id.

       This circuit has acknowledged plain error review may be less rigid in cases

where constitutional error occurred.     United States v. Clifton , 406 F.3d 1173,

1182 (10th Cir. 2005). In this case, because the district court judge did not

determine any facts other than the fact of prior conviction, no constitutional error

is present. United States v. Moore , 401 F.3d 1220, 1223 (10th Cir. 2005). We

therefore apply non-constitutional plain error analysis.

       Sanchez-Sanchez meets the first two prongs of the plain error test. It was

error for the district court to sentence Sanchez-Sanchez under a mandatory

sentencing scheme.     See Gonzalez-Huerta , 403 F.3d at 732. That error was plain




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even though Booker was not decided until after the district court sentenced

Sanchez-Sanchez.    See id.

      We need not consider the third prong of our plain error review because

Sanchez-Sanchez cannot demonstrate on this record that the     mandatory

application of the Guidelines seriously affected the fairness, integrity, or public

reputation of judicial proceedings, the fourth prong of plain error review. See id.

at 736 (“We need not determine whether [the defendant] can satisfy this burden

[of showing his substantial rights were affected] because even if he were to meet

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

      We recently outlined several factors to help determine whether a defendant

has satisfied this fourth prong of plain error review, including the likelihood the

district court would impose a lighter sentence on remand, whether the factors set

forth in 18 U.S.C. § 3553(a) warrant departure, and the weight of evidence

supporting the enhancement. See United States v. Dowlin, 408 F.3d 647, 671

(10th Cir. 2005). Applying these factors to this case, we conclude that we should

not exercise our discretion to notice plain error under the fourth prong.

      Sanchez-Sanchez provides no evidence the court would have given him a

lower sentence but for the mandatory nature of the Guidelines. In addition, his

extensive criminal history, which includes assault, child abuse, and several

convictions for driving while intoxicated, supports the court’s sentence, and


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strongly weighs against a conclusion that the court would evaluate the sentence

differently 18 U.S.C. § 3553(a)(2)(C) (e.g., “The court, in determining the

particular sentence to be imposed shall consider — . . . the need for the sentence

imposed — . . . to protect the public from further crimes of the defendant”).

Finally, in cases of non-constitutional plain error review, the defendant must

make an especially compelling record to warrant noticing of error. Sanchez-

Sanchez cannot do so in this case. Therefore, we conclude the error does not

meet the fourth prong of plain error review, and, accordingly, we decline to

exercise our discretion and order a remand.

      AFFIRMED.

                                                    Entered for the Court

                                                    Timothy M. Tymkovich
                                                    Circuit Judge




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