                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                               May 23, 2005
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                      Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                          No. 04-2233
          v.                                              (D. New Mexico)
 JESUS PEREZ-HERNANDEZ,                              (D.C. No. CR-04-974-RB)

               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.

      On May 20, 2004, Mr. Perez-Hernandez was indicted on one count of

illegal reentry into the United States after deportation and conviction for an



      *
        This order and judgment is not binding precedent, except under the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.
aggravated felony, in violation of 8 U.S.C. §§ 1326(a)(1), (2), and (b)(2). On

June 8, 2004, Mr. Perez-Hernandez pleaded guilty to the indictment without a

plea agreement. On August 20, 2004, the district court sentenced Mr. Perez-

Hernandez to 57 months of imprisonment. Mr. Perez-Hernandez now appeals his

sentence, contending the district court erred in applying an enhancement for his

prior conviction for an aggravated felony. He claims that enhancements for prior

convictions must be based on facts found by a jury, as required under Blakely v.

Washington, ___ U.S. ___, 124 S. Ct. 2531 (Jun. 24, 2004) and United States v.

Booker, ___ U.S. ___, 125 S. Ct. 738 (Jan. 12, 2005). We exercise jurisdiction

pursuant to 28 U.S.C. § 1291, and affirm Mr. Perez-Hernandez’s conviction and

sentence.

                                 I. BACKGROUND

      Mr. Perez-Hernandez was arrested on Mach 29, 2004 and charged with

illegally reentering the United States after having been deported. He had been

deported to Mexico on April 21, 2001, after his convictions in Forsyth County,

Georgia for possession with intent to distribute methamphetamine and possession

with intent to distribute marijuana. He received a sentence of ten years for the

state convictions; after he served two years in prison he was placed on probation

for the remaining eight years.




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      According to the presentence report, Mr. Perez-Hernandez’s base offense

level was 8, pursuant to United States Sentencing Guidelines Manual § 2L1.2(a).

The probation officer recommended that Mr. Perez-Hernandez receive a 16-level

upward adjustment pursuant to USSG §2L1.2(b)(1)(A)(ii) because he had the two

prior drug convictions in Georgia and had served a prison term of more than

thirteen months. The probation officer recommended that Mr. Perez-Hernandez

receive a three-level downward adjustment to his offense level for acceptance of

responsibility pursuant to USSG § 3E1.1. Mr. Perez-Hernandez’s adjusted

offense level was thus 21.

      Mr. Perez-Hernandez was in criminal history category IV. His criminal

history category was based on three criminal history points for each prior drug

conviction and two points for having committed the instant offense while on

probation from the drug convictions. The resulting guideline range was 57 to 71

months.

      Mr. Perez-Hernandez made no objection to the sentencing recommendations

in the presentence report, including the fact he was previously convicted for

distribution and possession. Similarly, at the sentencing hearing, neither Mr.

Perez-Hernandez nor his attorney objected to the factual statements in the

presentence report concerning his prior conviction. On August 20, 2004, the

district court adopted the findings of the presentence report and sentenced Mr.



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Perez-Hernandez to 57 months of imprisonment and two years of supervised

release.

                                 II. DISCUSSION

      Mr. Perez-Hernandez timely filed his appeal, and, for the first time,

challenges the continued viability of Almendarez-Torres v. United States, 523

U.S. 224, 243-44 (1998), which held that the fact of a prior conviction is an

exception to the rule that all facts which raise the maximum sentence must be

submitted to a jury and proved beyond a reasonable doubt. As a result, he

suggests Almendarez-Torres was wrongly decided, and that sentencing

enhancements made on the basis of prior convictions must be authorized by a jury

verdict or a defendant’s admission.

      In addition, Mr. Perez-Hernandez suggests that because the Guidelines are

now advisory rather than mandatory, in the wake of Booker, he is entitled to a

remand for resentencing on grounds that his previous sentence was imposed in

violation of law under an unconstitutional interpretation of the Guidelines. Mr.

Perez-Hernandez contends that this error amounts to plain error.

      Mr. Perez-Hernandez acknowledges that because he has neither previously

objected to the fact of his conviction nor previously raised any potential Sixth

Amendment or non-constitutional Booker violation, we review the district court’s

sentence under the plain error standard set forth in United States v. Olano, 507



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U.S. 725, 731, (1993). See also F ED . R. C RIM . P. 52(b). Under the plain error

standard, an appellant must clear several hurdles:

        [T]he error must (1) be an actual error that was forfeited; (2) be plain
        or obvious; and (3) affect substantial rights, in other words, in most
        cases the error must be prejudicial, i.e., it must have affected the
        outcome of the trial. . . . Given plain error that affects substantial
        rights, an appellate court should exercise its discretion and notice
        such error where it either (a) results in the conviction of one actually
        innocent, or (b) seriously affects the fairness, integrity or public
        reputation of judicial proceedings.

United States v. Keeling, 235 F.3d 533, 538 (10th Cir. 2000) (internal quotation

marks and citations omitted).

        A. Sixth Amendment/Almendarez-Torres Claim

        Although we acknowledge that Almendarez-Torres has been called into

question, it has not been overruled. In Shepard v. United States, 2005 WL

516494, *9 (U.S. Mar. 7, 2005), Justice Thomas, in a concurring opinion, noted

that:

        Almendarez-Torres . . . has been eroded by this Court’s subsequent
        Sixth Amendment jurisprudence, and a majority of the Court now
        recognizes that Almendarez-Torres was wrongly decided. . . . The
        parties do not request it here, but in an appropriate case, this Court
        should consider Almendarez-Torres’ continuing viability.
        Innumerable criminal defendants have been unconstitutionally
        sentenced under the flawed rule of Almendarez-Torres, despite the
        fundamental “imperative that the Court maintain absolute fidelity to
        the protections of the individual afforded by the notice, trial by jury,
        and beyond-a-reasonable-doubt requirements.” Harris v. United
        States, 536 U.S. 545, 581-582, (2002) (Thomas, J., dissenting).

2005 WL 516494, *9 (U.S. Mar. 7, 2005) (Thomas, J., concurring in part).

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      Despite this admonition, “as an inferior federal court we have the

responsibility to follow directly applicable Supreme Court decisions.” United

States v. Ordaz, 398 F.3d 236, 241 (3d Cir. 2005). “The holding in

Almendarez-Torres remains binding law, and nothing in Blakely or Booker holds

otherwise. Thus, because we are bound by Almendarez-Torres, we hold that the

district court’s determination regarding the facts of [Mr. Perez-Hernandez’s] prior

convictions did not violate the Sixth Amendment, notwithstanding that the

sentences were based, in part, on facts found by a judge rather than a jury.” Id.

      Furthermore, the Supreme Court in Blakely unequivocally restated the

proposition announced in Apprendi, 530 U.S. at 490: “[o]ther than the fact of a

prior conviction, any fact that increases the penalty for a crime beyond the

prescribed . . . maximum must be submitted to a jury, and proved beyond a

reasonable doubt.” Blakely, 124 S. Ct. at 2536 (emphasis added); see also United

States v. Cooper, 375 F.3d 1041, 1052-53 n.3 (10th Cir.), cert. denied, 125 S. Ct.

634 (2004). Furthermore, in Booker, the Supreme Court reaffirmed the

proposition that the fact of a prior conviction is an exception to factual jury

submissions:

      [W]e reaffirm our holding in Apprendi: Any 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.



                                          -6-
125 S. Ct. at 756 (emphasis added). Thus, we reject Mr. Perez-Hernandez’s

argument that the decision in Blakely prohibits enhancement of his sentence for

his prior conviction because a jury did not make a factual determination as to that

conviction. No question of fact existed for a jury to decide. As to this issue, Mr.

Perez-Hernandez cannot not show there was any error, much less plain error.

      B. Non-constitutional error

      Similarly Mr. Perez-Hernandez cannot establish that the sentencing court

would have reached a different sentence had it known the guidelines were

advisory and not mandatory. Although we have determined that such an error is

“plain,” under the first and second prongs of the Olano test, “the primary issue . .

. is whether Mr. [Perez-Hernandez] can satisfy both the third and fourth prongs of

plain-error review.” United States v. Gonzalez-Huerta, 2005 WL 807008, *3

(10th Cir. 2005) (en banc). To satisfy the third prong of Olano’s plain error

analysis, Mr. Perez-Hernandez retains the burden to show that his substantial

rights were affected. See id. In addition, pursuant to the fourth prong, “we will

not notice a non-constitutional error, such as the one in the case before us, unless

it is both ‘particularly egregious’ and our failure to notice the error would result

in a ‘miscarriage of justice.’” Id.

      As we held in Gonzalez-Huerta, where the defendant raised a similar

challenge, here, Mr. Perez-Hernandez “fails to meet his burden to satisfy the



                                         -7-
fourth prong of plain-error review.” Id. at 8. In his reply brief on appeal, he

offers little more than the assertion that “absent the constrictions of the

Guidelines, the sentencing court would have been free to more fully consider Mr.

Perez-Hernandez’s circumstances and determine a reasonable sentence.” Aplt’s

Reply Br. at 3. Without more, “we cannot hold, based upon the culmination of

these factors, that the mandatory application of the Guidelines in this case–while

error–is a particularly egregious one that would result in a miscarriage of justice

or otherwise call the judiciary into disrepute unless we remanded.” Gonzalez-

Huerta, 2005 WL 807008, at *9.



                                 III. CONCLUSION

      For the reasons stated above, we AFFIRM Mr. Perez-Hernandez’s

conviction and sentence.

                                                Entered for the Court,


                                                Robert H. Henry
                                                Circuit Judge




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