                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         MAY 12 2005
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 03-4122
          v.                                    (D.C. No. 2:02-CR-479-TS)
 VICTOR MANUEL ORTIZ-                                     (D. Utah)
 PLACENCIA aka Victor Alejandro
 Ortiz-Placencia,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Defendant Victor Manuel Ortiz-Placencia pleaded guilty to the offense of

illegal reentry by a deported alien. See 8 U.S.C. § 1326(a). On August 14, 2002,

before Defendant’s plea agreement, the Government filed a notice that

Defendant’s sentence would be enhanced under § 1326(b) because he had a prior


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
felony conviction in California. The plea agreement, signed by Defendant and his

counsel, acknowledges that his “previous criminal history includes the following

conviction: On July 19, 1995, in Los Angeles, California, of DUI Vehicular

Manslaughter Without Gross Negligence: case # YA024097.” R. Vol. I Doc. 23

at 7-8. At his change of plea hearing Defendant again admitted the prior felony

conviction.

      The Presentence Report (PSR) concluded that Defendant’s base offense

level of eight—the level for violating § 1326(a)—was subject to a 16-level

enhancement because of the prior felony conviction. See U.S.S.G.

§ 2L1.2(b)(1)(A)(ii). Defendant did not object to the sentencing recommendation

in the PSR. The court accepted the PSR recommendation and sentenced

Defendant to the bottom of the guidelines range, 41 months’ imprisonment

followed by 36 months of supervised release.

      Defendant appealed. In his original brief he argued that in light of Blakely

v. Washington, 124 S. Ct. 2531 (2004), the court erred in imposing the 16-level

enhancement based on the prior conviction “which was not alleged in the

indictment or admitted by the defendant.” Aplt. Br. at 1. Defendant contended

that Blakely effectively abrogated Almendarez-Torres v. United States, 523 U.S.

224 (1998), which held that a jury is not required to find the fact of a prior

conviction. After the Supreme Court decided United States v. Booker, 125 S. Ct.


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738 (2005), Defendant filed a supplemental brief, in which he argued that “it was

error for the district court to impose sentence under the erroneous assumption that

the guidelines were mandatory.” Aplt. Supp. Br. at 3. Defendant further argued

that the error was plain, see United States v. Olano, 507 U.S. 725 (1993), and that

the proper remedy is remand for resentencing.

      Defendant’s first argument, that Almendarez-Torres is no longer good law,

is misplaced because he admitted all the facts underlying his sentence.

Defendant’s second argument—that sentencing under a mandatory guidelines

regime is plain error—also fails. We recently noted that although mandatory

application of the guidelines is Booker error, it is not plain error requiring a

remand for resentencing unless the error was “a particularly egregious one that

would result in a miscarriage of justice or otherwise call the judiciary into

disrepute unless we remanded.” United States v. Gonzalez-Huerta, No. 04-2045,

slip. op. at 24 (10th Cir. Apr. 8, 2005). In Gonzalez-Huerta the defendant

pleaded guilty to illegal reentry by a deported alien following an aggravated

felony, the same crime at issue in this case. Id. at 2-3. He appealed his sentence,

arguing that the mandatory application of the guidelines was reversible plain

error. Id. at 4. We held that the mandatory application of the guidelines was

neither “particularly egregious” nor a “miscarriage of justice” because the

resulting sentence was within the national norms established by the guidelines and


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the record was devoid of any evidence indicating that a lower sentence was

appropriate. Id. at 20-22. Because Defendant, like the Gonzalez-Huerta

defendant, admitted all the facts underlying his sentence, his case involves non-

constitutional Booker error. The record likewise lacks evidence that indicates a

lower sentence is appropriate. Defendant’s case is thus indistinguishable from

Gonzalez-Huerta and we conclude that he has failed to show that the mandatory

application of the guidelines is plain error in his case.

      Defendant’s sentence is AFFIRMED.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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