                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         August 5, 2005
                               TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,                        No. 05-1031
 v.                                                     (D. of Colo.)
 HECTOR CERVANTES-AGUILAR,                      (D.C. No. 04-CR-344-WM)

             Defendant-Appellant.


                          ORDER AND JUDGMENT            *




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




      Defendant Hector Cervantes-Aguilar pleaded guilty to illegal reentry after

deportation in violation of 8 U.S.C. § 1326(a) and (b)(2). The district court

sentenced him to 77 months' imprisonment, the bottom of the applicable

Sentencing Guidelines range. Prior to sentencing, Defendant filed a Motion to

Declare Sentencing Guidelines Invalid and/or Unconstitutional and Objection to


      *
         This order is not binding precedent, except under the doctrines of law of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.
Guideline Sentencing, relying on   Blakely v. Washington , 542 U.S. 296 (2004).

The district court denied the motion. Subsequently, the United States Supreme

Court handed down United States v. Booker , 125 S. Ct. 738 (2005).

      Defendant’s opening brief argues that the district court committed non-

constitutional Booker error because it sentenced him under a mandatory

guidelines regime.   See United States v. Gonzalez-Huerta   , 403 F.3d 727, 731-32

(2005). The government concedes      United States v. Labastida-Segura   , 396 F.3d

1140 (10th Cir. 2005), requires Defendant's case to be remanded for resentencing.

We agree. Therefore, we REMAND to the district court for resentencing.



                                                Entered for the Court


                                                Timothy M. Tymkovich
                                                Circuit Judge




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