                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         June 29, 2005
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.                                                     No. 04-1485
                                                  (D.C. No. 04-CR-226-F)
 ASENCION CONTRERAS-                                     (D. Colo.)
 BUSTAMANTE, a/k/a Fabian Quezda,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before EBEL, McKAY and HENRY, Circuit Judges.


      Asencion Contreras-Bustamante (“Defendant”) pled guilty to one count of

illegal reentry after deportation subsequent to a conviction for an aggravated

felony, in violation 8 U.S.C. § 1326(a) and (b)(2). At sentencing, Defendant

argued that the Supreme Court’s recent decision in Blakely v. Washington, 124 S.

Ct. 2531 (2004), required the district court to hold the United States Sentencing


      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Guidelines unconstitutional. The district court held that the guidelines were

constitutional, and pursuant to a plea agreement, the court sentenced Defendant to

46 months in prison, the lowest possible sentence within the applicable guidelines

range. On appeal, Defendant requests resentencing in light of the Supreme

Court’s decision in United States v. Booker, 125 S. Ct. 738 (2005), and this

court’s decision in United States v. Labastida-Segura, 396 F.3d 1140 (10th Cir.

2005). The Government also concedes that remand for resentencing is

appropriate. For the reasons set forth below, we agree.

      In Booker, the Supreme Court held 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 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. To remedy the Sixth Amendment difficulties within the Sentencing

Guidelines, the Court invalidated the guidelines’ mandatory application and

instead required district courts to consult them in an advisory fashion. Id. at 756

(excising 18 U.S.C. §§ 3553(b)(1), 3742(e)).

      The instant case is nearly identical to our recent decision in Labastida-

Segura. In that case, the Mr. Labastida-Segura was convicted of roughly the same

offense as Defendant, unlawful reentry of a previously deported alien in violation

of 8 U.S.C. § 1326. Labastida-Segura, 396 F.3d at 1141. Like Defendant, Mr.


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Labastida-Segura challenged the constitutionality of the guidelines at sentencing

and was overruled by the district judge, who found the guidelines to be

constitutional. Id. at 1142. Finally, the district court in Labastida-Segura

imposed the lowest possible sentence under the applicable guidelines range, just

like the sentence imposed by the district court in the instant case. Id.

      Even though Defendant’s sentence does not involve a Sixth Amendment

violation, we must nevertheless apply the remedial holding of Booker. See

Labastida-Segura, 396 F.3d at 1142. Here, as in Labastida-Segura, it is clear that

the district court treated the guidelines as mandatory. (R.O.A. Vol. III, at 21 (“As

I indicated, I find that . . . the sentencing guidelines are constitutional and shall

be applied in this matter.” (emphasis added).) Furthermore, we cannot say that

the district court’s error was harmless. See Fed. R. Crim. P. 52(a). As we noted

in Labastida-Segura,

      Here, where [the sentence imposed] was already at the bottom of the
      guidelines range, to say that the district court would have imposed
      the same sentence given the new legal landscape (even after
      consulting the Sentencing Guidelines in an advisory capacity) places
      us in the zone of speculation and conjecture—we simply do not know
      what the district court would have done after hearing from the
      parties. Though an appellate court may judge whether a district court
      exercised its discretion (and whether it abused that discretion), it
      cannot exercise the district court's discretion.

396 F.3d at 1143. The instant case presents all of the same uncertainties that

faced the Labastida-Segura court. In addition, our sense of what the district court


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might do on remand is further complicated by the fact that the district court

refused to issue an alternate sentence in the event that the guidelines were

eventually declared unconstitutional.

      Accordingly, we REVERSE the defendant’s sentence and REMAND for

resentencing in light of Booker.


                                        ENTERED FOR THE COURT



                                        David M. Ebel
                                        Circuit Judge




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