                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           MAR 3 2005
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,
          v.                                             No. 04-1301
                                                  (D.C. No. 04-CR-54 WM)
 JORGE ANTONIO RAMOS-LERMA,                             (D. Colorado)


               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Defendant Jorge Antonio Ramos-Lerma appeals his sentence after a plea of

guilty to the charge of illegal reentry by a previously deported alien, 8 U.S.C.

§ 1326. He was sentenced at the bottom end of the applicable Guideline range.

His sole ground of appeal is that the mandatory Guideline regime under which he



      *
       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 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
was sentenced is unconstitutional under    Blakely v. Washington , 124 S. Ct.

2531(2004), and its progeny.

      Defendant preserved this issue below. In a Rule 28(j) letter the

Government concedes, as it should, that this case is governed by   United States v.

Labastida-Segura , 396 F.3d 1140 (10th Cir. 2005), and it consents to remand for

resentencing.

      We REVERSE Defendant’s sentence and REMAND to the district court for

resentencing.

                                          ENTERED FOR THE COURT


                                          Harris L Hartz
                                          Circuit Judge




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