                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                          July 7, 2005
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
                                                       No. 04-2254
 vs.                                              (D.C. No. CR-04-1101)
                                                         (D.N.M.)
 ADRIAN MARQUEZ-CALDERON,

           Defendant - Appellant.


                              ORDER AND JUDGMENT *


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


       Defendant-Appellant Adrian Marquez-Calderon was charged with illegally

entering the United States after having been deported, in violation of 8 U.S.C. §

1326(a)(1)-(2), and (b)(2). Prior to sentencing, Mr. Marquez-Calderon filed a

motion for downward departure below the guideline range of 27 to 33 months,

which the district court denied. The district judge sentenced him 27 months’

       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         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.
imprisonment, but stated that he “would sentence the defendant to a lesser

amount, likely 18 months” if he were not bound by the sentencing guidelines.

Aplt. Br. Attach. C at 3.   On appeal, Mr. Marquez-Calderon argues that (1) the

district court erred by refusing to depart under U.S.S.G. § 5H1.4 (allowing

downward departure for extraordinary physical impairment) and (2) his sentence

is unconstitutional in light of Blakely v. Washington, 124 S. Ct. 2531 (2004) and

United States v. Booker, 125 S. Ct. 738 (2005). Because the latter claim is

dispositive, we need not determine whether the district court’s refusal to depart

was erroneous.

      Although this case presents no Sixth Amendment error, the district court

did sentence Mr. Marquez-Calderon under the erroneous belief that the Guidelines

were mandatory, thus committing non-constitutional Booker error. See, e.g.,

United States v. Williams, 403 F.3d 1188, 1199 (10th Cir. 2005). Because this

issue was not raised during sentencing, we review for plain error. United States

v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005). On appeal, the

government concedes that Mr. Marquez-Calderon has demonstrated (1) that the

district court committed error, (2) that the error was plain, and (3) that the plain

error affected his substantial rights. Aplee. Br. at 15-16. Accordingly, the only

issue on appeal is whether we exercise our discretion to correct an error that

affects the fairness, integrity, or public reputation of judicial proceedings. United


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States v. Cotton, 535 U.S. 625, 631 (2002). We will only exercise our discretion

when an error is “particularly egregious” and the failure to remand for correction

would produce a “miscarriage of justice.” Gonzalez-Huerta, 403 F.3d at 736

(citation and internal quotation omitted). In contrast to many cases involving

non-constitutional Booker error, Mr. Marquez-Calderon’s case meets this fourth

element, given his sentence and the statements by the sentencing judge. Because

the district court expressed a desire to sentence below a guideline range from

which he felt he could not deviate, allowing Mr. Marquez-Calderon’s sentence to

stand would call into question the fairness, integrity, and public reputation of

judicial proceedings.

      For the foregoing reasons, Mr. Marquez-Calderon’s sentence is VACATED

and REMANDED for resentencing. Mr. Marquez-Calderon’s motion to waive

oral argument and for expedited decision is granted.



                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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