                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           December 13, 2005
                                  TENTH CIRCUIT
                                                                              Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                        No. 04-2273
          v.                                            (D. New Mexico)
 GERARDO ANCHONDO-                                 (D.C. No. CR-03-2214-JB)
 RASCONDO,

               Defendant-Appellant.




                            ORDER AND JUDGMENT *


Before EBEL, McKAY, and HENRY, Circuit Judges.


      After examining appellant’s brief and the 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); 10 TH C IR . R. 34.1(G).

      Mr. Anchondo-Rascondo pleaded guilty to illegally reentering the United

States after having been deported following conviction of an aggravated felony, in

violation of 8 U.S.C. § 1326(b)(2). The district court sentenced him to 70


      *
        This order and judgment is not binding precedent, except under the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.
months’ imprisonment, and stated at sentencing its intent to impose an identical

alternative sentence if the Guidelines were declared unconstitutional. Mr.

Anchondo-Rascondo appeals his sentence, in light of United States v. Booker, 125

S. Ct. 738 (2005), and seeks a remand for resentencing. He also contends that the

district court improperly calculated his criminal history. We conclude that the

non-constitutional sentencing error was harmless, and the district court did not err

in its calculation of his criminal history. Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm the district court’s sentence.

                                I. BACKGROUND

      On September 1, 2003, United States Border Patrol agents arrested Mr.

Anchondo-Rascondo near Lordsburg, New Mexico. On November 4, 2003, he

pleaded guilty to reentering the United States illegally after having been deported

following conviction for an aggravated felony. He had been previously deported

from the United States to Mexico in May 2002, after being convicted of unlawful

possession with intent to deliver cocaine.

      The pre-sentence report (“PSR”) determined that Mr. Anchondo-

Rascondo’s base offense level was 8. See U.S.S.G. § 2L1.2(a). It recommended

a sixteen-level enhancement for a prior drug trafficking offense, see U.S.S.G. §

2L1.2(b)(1)(A), and a three-level downward adjustment for acceptance of

responsibility, see U.S.S.G. § 3E1.1. With an adjusted offense level of 21, and a


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criminal history category V, the Guidelines range was 70 to 87 months.

      Mr. Anchondo-Rascondo objected to the sixteen-level enhancement,

arguing that it violated his right to a jury trial under Blakely v. Washington, 542

U.S. 296 (2004). He also objected to the PSR’s determination that he had ten

criminal history points. Two of those points resulted from committing the instant

offense while under probation in Minnesota. See U.S.S.G. § 4A1.1(d).

      The district court overruled his Blakely objections, and it adopted the

PSR’s factual findings and Guidelines recommendations. It sentenced Mr.

Anchondo-Rascondo to 70 months’ imprisonment, followed by two years’

supervised release. It also ordered a $100 special assessment. The district court

then announced an identical alternative sentence “[i]f the Tenth Circuit or the

Supreme Court declare[s] unconstitutional the guidelines.” Rec. vol. III, at 14

(Sentencing Hr’g, dated Sept. 21, 2004).

      On appeal, Mr. Anchondo-Rascondo argues that the district court (1)

violated his Sixth Amendment rights under Booker, and (2) erred in calculating

his criminal history.

                                 II. DISCUSSION

A.    Booker claim

      The Supreme Court in Booker stated that sentencing courts may have

committed two types of error when applying the then-mandatory Guidelines:


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constitutional and non-constitutional error. Constitutional Booker error occurs

when a court “rel[ies] upon judge-found facts, other than those of prior

convictions, to enhance a defendant’s sentence mandatorily,” in violation of the

Sixth Amendment. United States v. Gonzalez-Huerta, 403 F.3d 727, 731 (10th

Cir. 2005) (en banc). A court commits non-constitutional Booker error when it

“appl[ies] the Guidelines in a mandatory fashion, as opposed to a discretionary

fashion, even though the resulting sentence was calculated solely upon facts that

were admitted by the defendant, found by the jury, or based upon the fact of a

prior conviction.” Id. at 731-32.

      The government concedes that the district court committed non-

constitutional error when the court applied the Guidelines as though they were

mandatory. This case, however, does not involve constitutional error. The

sixteen-level enhancement was based on a November 2001 drug trafficking felony

conviction, and Mr. Anchondo-Rascondo admitted such conviction at his plea

hearing. Rec. vol. IV, at 15-16 (Plea Hr’g, dated Nov. 4, 2003). Further, neither

the existence of a prior conviction nor its classification as an enhancement under

Section 2L1.2(b)(1)(A) of the Guidelines constitutes facts that must be included

in an indictment or proven to a jury. United States v. Moore, 401 F.3d 1220,

1226 (10th Cir. 2005) (concluding that the facts of a prior conviction and its

classification as a “violent felony” need not be charged in an indictment or


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determined by a jury); see United States v. Gallegos-Aguero, 409 F.3d 1274, 1276

(11th Cir. 2005) (“[T]here is no Sixth Amendment violation when a district court

enhances a sentence based on prior convictions, including those specified in §

2L1.2(b)(1)(A).”); see also Booker, 125 S. Ct. at 756 (“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.”) (emphasis supplied).

      Mr. Anchondo-Rascondo preserved his Blakely objection below, and we

thus review his non-constitutional sentencing error for harmlessness. See United

States v. Labastida-Segura, 396 F.3d 1140, 1142-43 (10th Cir. 2005) (stating that

a Blakely objection sufficiently preserves a claim of error under Booker). “Any

error, defect, irregularity, or variance that does not affect substantial rights must

be disregarded.” F ED . R. C RIM . P. 52(a). “In non-constitutional harmless error

cases, the government bears the burden of demonstrating, by a preponderance of

the evidence, that the substantial rights of the defendant were not affected.”

United States v. Glover, 413 F.3d 1206, 1210 (10th Cir. 2005).

      In Labastida-Segura, 396 F.3d at 1143, we concluded that a non-

constitutional Booker error was not harmless when a defendant was sentenced at

the bottom of the Guidelines range and the court did not indicate how it would


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impose a discretionary sentence “given the new legal landscape.” However, if the

district court proposed an alternative sentence under a discretionary Guidelines

scheme, a remand for resentencing may not be necessary. In United States v.

Serrano-Dominguez, 406 F.3d 1221, 1223 (10th Cir. 2005), “the district court

announced an alternative sentence, which applied the methodology suggested by

Booker” and considered the factors set forth in 18 U.S.C. § 3553(a) that were

relevant to the defendant. We deemed the non-constitutional error there to be

harmless because “[t]he district court applied the sentencing methodology

suggested in Booker and concluded that even if the Guidelines were not

mandatory [the defendant] would receive the same sentence.” Id. at 1224; see

also United States v. Mathenia, 409 F.3d 1289, 1292 (11th Cir. 2005) (finding a

non-constitutional Booker error to be harmless where the district court stated it

would impose the same sentence if the Guidelines were held unconstitutional as

mandatorily applied); United States v. Thompson, 403 F.3d 533, 536 (8th Cir.

2005) (concluding that non-constitutional Booker error was harmless because the

district court stated an identical alternative sentence).

      Here, the district court announced an identical alternative sentence for Mr.

Anchondo-Rascondo in case the Guidelines were ruled unconstitutional. As a

result, we are not “in the zone of speculation and conjecture,” as we were in

Labastida-Segura, 396 F.3d at 1143, and “we do not need to read any tea leaves


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to determine what the district court would do on remand,” Serrano-Dominiguez,

406 F.3d at 1223.

      Nonetheless, Mr. Anchondo-Rascondo argues that we should remand for

resentencing because the district court did not expressly consider the relevant

factors outlined in 18 U.S.C. § 3553(a) when it announced the alternative

sentence. According to him, the “sentencing court must consider the sentence

calculated using the Guidelines and related policy statements in conjunction with

the other sentencing considerations listed in Section 3553(a).” Aplt’s Br. at 9.

However, even prior to Booker, the Sentencing Reform Act instructed judges to

consider the factors outlined in § 3553(a) when imposing sentences. See 18

U.S.C. § 3553(a) (“The court, in determining the particular sentence to be

imposed, shall consider [those factors].”); see also United States v. Rines, 419

F.3d 1104, 1107 (10th Cir. 2005) (noting that, in a case where the district court

imposed an identical discretionary sentence, “[i]t is true that the district court did

not march through § 3553(a)’s sentencing factors, but we have never imposed

such a requirement”).

      Further, the district court adopted the PSR’s factual findings and

Guidelines applications as to Mr. Anchondo-Rascondo. The PSR explicitly

considered relevant § 3553(a) factors. It examined his offender characteristics,

including personal and family data, educational and vocational skills, and


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employment; it also outlined various sentencing options regarding the terms of his

custody, supervised release, fine, and special assessment. Rec. vol. II, at 9-12.

B.    Criminal history calculation

      Finally, we reject Mr. Anchondo-Rascondo’s contention that the district

court erred in adding two criminal history category points under Section 4A1.1(d)

of the Guidelines. That provision applies “if the defendant committed the instant

offense while under any criminal justice sentence, including probation.” U.S.S.G.

§ 4A1.1(d). He does not dispute that a Minnesota warrant was outstanding when

he was arrested in September 2003. However, he maintains that the two points

should not apply because (1) Minnesota had waived extradition on prior occasions

when he was in custody, and (2) the warrant stated “Minnesota Only.”

      “[A]ctive supervision [of a warrant] is not required for [the criminal history

points] to apply.” U.S.S.G. § 4A1.1(d) cmt. n.4. “The plain language of [Section

4A1.1(d) and its commentary] indicates that two points are to be added whenever

an outstanding warrant is in existence, regardless of whether the warrant is stale

pursuant to state law at the time of sentencing, and irrespective of whether state

authorities have been lax in attempting to execute the warrant.” United States v.

Elmore, 108 F.3d 23, 27 (3d Cir. 1997). Thus, because the warrant was

outstanding at the time of Mr. Anchondo-Rascondo’s arrest, the district court did

not err in assigning two points to his criminal history category.


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                       III. CONCLUSION

Accordingly, we AFFIRM the district court’s sentence.



                                      Entered for the Court,


                                      Robert H. Henry
                                      Circuit Judge




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