                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                          July 12, 2005
                     UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT                     PATRICK FISHER
                                                                              Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.
                                                        No. 04-2304
 LEONEL FLORES-LERMA,                            (D.C. No. CR-04-1289-WJ)
                                                         (D. N.M.)
          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.



      Leonel Flores-Lerma appeals his sentence for illegal reentry, a violation of

8 U.S.C. §§ 1326(a)(1), (a)(2), and (b)(1). He seeks remand for resentencing

because the sentencing court utilized the Sentencing Guidelines in a mandatory

fashion in contravention of the remedial holding in United States v. Booker, 125

S.Ct. 738 (2005). Because any Booker error plaguing Flores-Lerma’s sentence


      *
        The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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.
does not seriously affect the fairness, integrity, or public reputation of judicial

proceedings, we AFFIRM.

       Flores-Lerma faced a base offense level of 8, which was enhanced four

levels under U.S.S.G. § 2L1.2(b)(1)(D) because he was previously deported after

a felony conviction. With a two-level reduction for acceptance of responsibility,

Flores-Lerma confronted a Guideline range of 15-21 months. The court sentenced

him at the bottom of the range to 15 months’ imprisonment.

       On appeal, Flores-Lerma argues that the district court erred because it

“clearly deemed itself bound by the mandatory application of the Sentencing

Guidelines.” Because he raised no objection to his sentence below, we review his

sentence for plain error under the four-part test articulated in United States v.

Olano, 507 U.S. 725 (1993), which asks (1) is there error; (2) is the error plain;

(3) does it affect substantial rights; and (4) does it seriously affect the fairness,

integrity, or public reputation of judicial proceedings. United States v. Gonzalez-

Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (en banc). A district court commits

non-constitutional Booker error “by applying the Guidelines in a mandatory

fashion, as opposed to a discretionary fashion, even though the resulting sentence

was calculated solely . . . upon the fact of a prior conviction.” Id. at 731-32.

Therefore, the court below committed error. Moreover, the error is plain. Id. at

732.


                                           2
      Nonetheless, the defendant cannot show that the non-constitutional Booker

error in this case seriously affects the fairness, integrity, or public reputation of

judicial proceedings. See United States v. Cotton, 535 U.S. 625, 632-633 (2002)

(“we need not resolve [the third prong] of the plain-error inquiry, because even

assuming [defendant’s] substantial rights were affected, the error did not

seriously affect the fairness, integrity, or public reputation of judicial

proceedings.”). “[W]e will not notice a non-constitutional error, such as the one

in the case before us, unless it is both ‘particularly egregious’ and our failure to

notice the error would result in a ‘miscarriage of justice.’” Gonzalez-Huerta, 403

F.3d at 736. Flores-Lerma raised no objection below to either the Pre-Sentence

Report or to the sentence. He made no arguments in mitigation nor did he seek a

downward departure. Moreover, the district court did not express any

dissatisfaction with either the sentencing range prescribed by the Guidelines or

the Guidelines’ mandatory character. On appeal, Flores-Lerma merely asserts that

because the district court sentenced him at the bottom of the range, it is possible

that the court would sentence him lower on remand. That argument does not

convince us that failing to remand for resentencing would result in a miscarriage




                                            3
of justice. Accordingly, we AFFIRM the sentencing order entered by the district

court.



                                           ENTERED FOR THE COURT


                                           Carlos F. Lucero
                                           Circuit Judge




                                       4
