                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            July 1, 2005
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 04-2203
v.                                               (District of New Mexico)
                                                (D.C. No. CR-04-435-WPJ)
ALEJANDRO CARRILLO-RUIZ,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


      After examining the briefs and the 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       This order and judgment is not binding precedent, except under the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.
I.    INTRODUCTION

      Defendant-appellant Alejandro Carrillo-Ruiz pleaded guilty to illegal

reentry after a conviction for an aggravated felony, in violation of 8 U.S.C. §

1326(a)(1), (2), and (b)(2). The district court sentenced Carrillo-Ruiz to fifty-

seven months’ imprisonment. On appeal Carrillo-Ruiz is challenging his

sentence. We exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C.

§ 1291 and affirm.

II.   BACKGROUND

      Carrillo-Ruiz was arrested on January 19, 2004 by a United States Border

Patrol Agent. On March 9 the government filed an information charging Carrillo-

Ruiz with being found in the United States after having been deported in

September 2003 following a conviction for an aggravated felony, in violation of 8

U.S.C. § 1326(a)(1), (2), and (b)(2). The underlying felony named in the

information was reckless injury to a child. At a plea hearing held on March 9,

Carrillo-Ruiz formally waived his right to a grand jury indictment and consented

to proceed by way of information. Carrillo-Ruiz pleaded guilty to reentry after

deportation but reserved the right to challenge whether reckless injury to a child

is an aggravated felony and to dispute whether the conviction was out of Dallas.

Subsequent to the plea hearing, on April 26, the government filed an amended




                                         -2-
information charging the same offense, but alleging a different underlying

aggravated felony: burglary of a habitation.

      The presentence report (“PSR”) recommended an adjusted offense level of

twenty-one. Pursuant to United States Sentencing Guidelines (“U.S.S.G.”) §

2L1.2(a), the base offense level for illegal reentry is eight. Based on the

underlying conviction for burglary of a habitation, which is considered a crime of

violence, a sixteen-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii)

was applied, resulting in an adjusted offense level of twenty-four. 1 The offense

level was reduced three levels for acceptance of responsibility producing an

adjusted offense level of twenty-one. Based on this offense level and Carrillo-

Ruiz’s criminal history category IV status, the applicable Guidelines range was

fifty-seven to seventy-one months’ imprisonment.

      Carrillo-Ruiz filed formal objections to the PSR contending the sixteen-

level enhancement and the assignment of a criminal history category above I

violated Carrillo-Ruiz’s Sixth Amendment rights under Blakely v. Washington,

124 S. Ct. 2531 (2004), because both were based on facts not found by a jury or

admitted by Carrillo-Ruiz. He further asserted that because the burglary



      1
        The government admits that Carrillo-Ruiz’s conviction for reckless injury
to a child is not a crime of violence for purposes of the sixteen-level sentencing
enhancement because it did not result in a jail term of more than one year. See 8
U.S.C. § 1101(43); U.S.S.G. § 2L1.2(b)(1)(A)(ii).

                                         -3-
conviction was not charged in the original information, to which Carrillo pleaded

guilty, he was deprived of his Due Process rights. At sentencing the district court

overruled Carrillo-Ruiz’s objections to the PSR and rejected Carrillo-Ruiz’s

Blakely argument. The court sentenced Carrillo-Ruiz to fifty-seven months’

imprisonment.

III.   DISCUSSION

       Carrillo-Ruiz argues that he must be resentenced because the sixteen-level

sentencing enhancement was based on an alleged prior conviction that was not

charged in the original information. As a consequence, Carrillo-Ruiz contends,

he did not knowingly, intelligently, and voluntarily waive his right to a grand jury

indictment and because the existence of the alleged prior conviction was not

found by a jury or admitted by Carrillo-Ruiz, his sentence violates his Sixth

Amendment rights under Blakely.

       While this appeal was pending the Supreme Court decided United States v.

Booker, 125 S. Ct. 738 (2005). In Booker, the Supreme Court extended the

holding of Blakely to the federal Sentencing Guidelines such 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 or a jury verdict must be admitted by the defendant

or proved to a jury beyond a reasonable doubt.” 125 S. Ct. at 756. The Court had


                                         -4-
previously held that 8 U.S.C. § 1326(b)(2), which authorizes prior-conviction

sentencing enhancements for individuals convicted of illegal reentry, is a penalty

provision and does not define a separate crime. Almendarez-Torres v. United

States, 523 U.S. 224, 226 (1998). “Consequently, neither the statute nor the

Constitution requires the Government to charge the factor that it mentions, an

earlier conviction, in the indictment.” Id. at 226-27. This rule in Almendarez-

Torres remains good law after Booker. United States v. Moore, 401 F.3d 1220,

1224 (10th Cir. 2005). Thus, the enhancement applied to Carrillo-Ruiz’s sentence

for his prior conviction does not violate his Sixth Amendment rights because “the

government need not charge the ‘fact’ of a prior conviction in an indictment and

submit it to a jury.” Id. 2



       The remedial portion of the Supreme Court’s decision in Booker rendered
       2

the Sentencing Guidelines advisory only. United States v. Booker, 125 S. Ct. 738,
764-65 (2005). Thus, even though Carrillo-Ruiz’s sentence does not violate the
Sixth Amendment, 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). At
sentencing, however, the district court offered an alternative sentence stating:

       The Court notes that this sentence that I’ve just imposed is within the
       statutory range, without regard to the Sentencing Guidelines. Should
       the [S]entencing Guidelines regime be declared unconstitutional, the
       Court determines that it is within the Court’s discretion to sentence
       within the statutory range and sentences exactly as I have just
       indicated.

Any error resulting from the court’s mandatory application of the Guidelines is
                                                                    (continued...)

                                         -5-
       To be effective, waiver of a grand jury indictment can only occur after the

defendant has been advised of the nature of the charge pending. Fed. R. Crim. P.

7(b). The defendant need not be made aware of an alleged prior conviction

before waiving his right to a grand jury indictment because the alleged prior

conviction is not an element of the crime charged, but a factor for sentencing.

See Almendarez-Torres, 523 U.S. at 226. Accordingly, the failure of the

government to charge the prior conviction in the information does not affect the

validity of Carrillo-Ruiz’s waiver of a grand jury indictment. Nor is there any

other evidence in the record to suggest that Carrillo-Ruiz’s waiver was not done

knowingly, voluntarily, and intelligently. See United States v. Ferguson, 758

F.2d 843, 850-51 (2d Cir. 1985).

IV.    CONCLUSION

       For the foregoing reasons, we AFFIRM the sentence imposed by the

district court.

                                       ENTERED FOR THE COURT



                                       Michael R. Murphy
                                       Circuit Judge




       (...continued)
       2

therefore harmless. See United States v. Labastida-Segura, 396 F.3d 1140, 1142-
43 (10th Cir. 2005).

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