                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         October 6, 2005
                                TENTH CIRCUIT
                                                                            Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 04-1504
          v.                                         District of Colorado
 SAUL JIMENEZ-JIMENEZ, also                       (D.C. No. 04-CR-272-N)
 known as Alberto Jimenez, also known
 as Alberto Jimenez-Aguilar,

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Saul Jimenez-Jimenez, a Mexican citizen, pled guilty to illegally re-

entering the United States after deportation. At sentencing, the district court

denied Mr. Jimenez-Jimenez’s motion for downward departure and sentenced him

to 77 months in prison. Mr. Jimenez-Jimenez appeals his sentence under United

States v. Booker, 125 S. Ct. 738 (2005), claiming that the district court committed

plain error by sentencing him under the mandatory guidelines regime. Because


      *
       This order and judgment is not binding precedent, except under the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.
we find that the district court’s sentence did not affect Mr. Jimenez-Jimenez’s

substantial rights, we affirm the district court’s decision.

                       Factual and Procedural Background

      In 2002, Mr. Jimenez-Jimenez was convicted in the District Court, Pueblo

County, Colorado, of the felony offense of unlawful possession with intent to

distribute a schedule II controlled substance, an “aggravated felony” as defined in

8 U.S.C. § 1101(a)(43). On October 2, 2002, following the state court conviction,

Mr. Jimenez-Jimenez was ordered deported from the United States by the then-

Immigration and Naturalization Service. He was transported to Mexico on

October 8, 2002. On June 9, 2004, officers of the Pueblo Police Department

found Mr. Jimenez-Jimenez in Pueblo, Colorado. They arrested him for giving a

false name and for having small quantities of suspected drugs in his possession.

On June 23, 2004, Mr. Jimenez-Jimenez was charged with illegal re-entry after

deportation and after committing an aggravated felony, to which he pled guilty on

September 2, 2004.

      At the sentencing hearing, the district court denied Mr. Jimenez-Jimenez’s

request for a downward departure based on the factors stated in 18 U.S.C. §

3553(b); the victim’s conduct; and coercion or duress. The district court adopted

the pre-sentence report and sentenced Mr. Jimenez-Jimenez at the bottom of the

recommended Guidelines range, to 77 months in prison. Although Mr. Jimenez-


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Jimenez did not raise a Booker objection to his sentence, the district court

nonetheless stated that “the court would impose the same sentence even if the

guidelines were set aside and the court were to impose a discretionary sentence

within the statutory maximum.”

      Mr. Jimenez-Jimenez appeals his sentence, claiming that the district court’s

mandatory application of the Sentencing Guidelines constituted reversible error

pursuant to Booker.

                                     Discussion

      Mr. Jimenez-Jimenez concedes that he did not raise the Booker issue in the

district court, and, therefore, we review his sentence for plain error. United

States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (en banc). “Plain

error occurs when there is (1) error, (2) that is plain, which (3) affects substantial

rights, and which (4) seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” Id. (quotation omitted).

      There are two types of Booker error: constitutional Booker error and non-

constitutional Booker error. Id. at 731-32. Constitutional Booker error occurs

when a sentencing court mandatorily increases a sentence on the basis of judge-

found facts other than the fact of a prior conviction. Id. at 731. Non-

constitutional Booker error, in contrast, occurs when a sentencing court applies

the Guidelines in a mandatory, rather than discretionary fashion, even though the


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sentence was calculated solely upon facts admitted by the defendant, found by a

jury, or based upon a prior conviction. Id. at 731-32.

      Mr. Jimenez-Jimenez claims that the district court committed non-

constitutional Booker error by imposing his 77-month sentence, which was at the

bottom of the Guidelines range of 77 to 96 months, pursuant to the then-

mandatory Guidelines. As the government concedes, this mandatory application

of the Guidelines constitutes error that is plain. See id. at 732. However, to

satisfy the third prong of plain error analysis--that the sentence affected Mr.

Jimenez-Jimenez’s substantial rights--Mr. Jimenez-Jimenez must show that the

error was prejudicial. United States v. Trujillo-Terrazas, 405 F.3d 814, 819 (10th

Cir. 2005). The burden to establish prejudice rests upon the party that failed to

raise the issue below. Id. Thus, Mr. Jimenez-Jimenez must show a “‘reasonable

probability’ that the defects in his sentencing altered the result of the

proceedings.” Id. (quoting United States v. Dominguez Benitez, 542 U.S. 74

(2004)).

      Mr. Jimenez-Jimenez contends that he satisfies the third prong of the plain

error test because non-constitutional Booker error constitutes structural error,

requiring reversal without a showing of prejudice. After Mr. Jiminez-Jimenez

submitted his brief, however, this Court, sitting en banc, held that non-

constitutional Booker error is not structural error. Gonzalez-Huerta, 403 F.3d at


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734. Therefore, Mr. Jimenez-Jimenez’s structural error claim lacks merit. Mr.

Jimenez-Jimenez properly concedes that he was not prejudiced by the district

court’s mandatory application of the Guidelines. The district court’s Statement of

Reasons for Sentence forecloses any possibility that Mr. Jimenez-Jimenez would

have received a different sentence under a discretionary Guidelines regime.

United States v. Serrano-Dominguez, 406 F.3d 1221, 1224 (10th Cir. 2005)

(holding that non-constitutional Booker error does not affect substantial rights

where the district court stated at sentencing that it would impose the same

sentence without the Guidelines). Here, the district court explained that it “would

impose the same sentence even if the guidelines were set aside and the court were

to impose a discretionary sentence within the statutory maximum.” ®. Vol. IV, p.

4.) Because nothing in the record suggests that Mr. Jimenez-Jimenez would

receive a different sentence on remand, the district court’s mandatory application

of the Guidelines did not affect his substantial rights.

      Finding that the sentence imposed by the district court did not constitute

plain error, we dismiss Mr. Jimenez-Jimenez’s appeal. The judgment of the

United States District Court for the District of Colorado is AFFIRMED.



                                                Entered for the Court,

                                                Michael W. McConnell
                                                Circuit Judge

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