                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                               July 22, 2005
                                       TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                                 No. 04-1494
                                                      (D. Ct. No. 04-CR-15-RB)
 GARY SMITH,                                                  (D. Colo.)

               Defendant - Appellant.


                              ORDER AND JUDGMENT*


Before TACHA, Chief Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
HARTZ, Circuit Judge.


      After examining the briefs and the appellate record, this three-judge panel has

determined unanimously to grant the joint motion to submit this appeal on the briefs. See

Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted

without oral argument.

       Defendant-Appellant Gary Smith pleaded guilty to being a felon in possession of a

firearm and ammunition. See 18 U.S.C. § 922(g)(1). As part of the plea agreement, the



      *
        This order and judgment is not binding precedent, except under the doctrines of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.
Government agreed not to oppose Mr. Smith’s motion for a downward departure based

upon voluntary disclosure. See U.S. Sentencing Guidelines Manual § 5K2.16 (2003)

(“U.S.S.G.” or “Guidelines”). Nonetheless, the Government opposed the U.S.S.G.

§ 5K2.16 departure motion at sentencing. The District Court agreed with the Government

on this score and declined to grant the departure. Also at sentencing, Mr. Smith

challenged the constitutionality of the mandatory application of the Guidelines pursuant

to Blakely v. Washington, 542 U.S. 296 (2004). The District Court rejected Mr. Smith’s

argument, and Mr. Smith timely appeals. We take jurisdiction under 28 U.S.C. § 1291

and 18 U.S.C. § 3742(a)(1) and REVERSE and REMAND.

       On appeal, the Government concedes that it agreed not to oppose the U.S.S.G.

§ 5K2.16 departure at sentencing. It also concedes that Mr. Smith’s failure to raise this

issue at sentencing is immaterial. See United States v. Peterson, 225 F.3d 1167, 1170

(10th Cir. 2000) (“[T]his circuit has held that a defendant does not waive his right to

appeal a claim that the government has breached a plea agreement when he fails to object

to the breach before the district court.”). As such, the Government agrees that remand is

in order on this issue.

       Next, Mr. Smith argues that the District Court committed non-constitutional

Booker error by applying the Guidelines mandatorily, even though it did not rely upon

judge-found facts to enhance the relevant statutory maximum. See United States v.

Booker, 543 U.S. —, 125 S. Ct. 738 (2005); United States v. Gonzalez-Huerta, 403 F.3d


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727, 731–32 (10th Cir. 2005) (en banc) (discussing the distinction between constitutional

and non-constitutional Booker error). Mr. Smith further argues that because he preserved

this error below and because the error is not harmless, a remand is required. See United

States v. Labastida-Segura, 396 F.3d 1140, 1143 (10th Cir. 2005) (on harmless-error

review, remanding a non-constitutional Booker error case in the face of a silent record).

The Government concedes Mr. Smith’s Booker argument.

       Therefore, we REVERSE and REMAND for resentencing in light of Booker. We

further ORDER that the Government shall not oppose Mr. Smith’s motion for a

downward departure pursuant to U.S.S.G. § 5K2.16.

                                          ENTERED FOR THE COURT,



                                          Deanell Reece Tacha
                                          Chief Circuit Judge




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