                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                        August 2, 2005
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 04-2042
          v.                                United States District Court for the
                                                 District of New Mexico
 ISAURO SAMORA-SANCHEZ,                         (D.C. No. CR-03-2492-LH)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before O’BRIEN, McCONNELL, and PORFILIO, Circuit Judges.


      This case returns to us after the Supreme Court granted certiorari, vacated

the original judgment, and remanded for reconsideration in light of United States

v. Booker, 125 S.Ct. 738 (2005). Samora-Sanchez v. United States, 125 S.Ct.

1867 (2005).

      The district court sentenced Mr. Samora-Sanchez under the United States

Sentencing Guidelines to a sentence of 41 months. On direct appeal, Mr. Samora-



      *
       This order and judgment is not binding precedent, except under the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.
Sanchez raised two constitutional challenges to the Sentencing Guidelines, neither

of them based on the Sixth Amendment, and contended that he should be

sentenced without regard to the Guidelines. In an unpublished Order and

Judgement, this Court rejected those arguments and affirmed the sentence.

United States v. Samora-Sanchez, 122 Fed. Appx. 909, 910 (10th Cir. 2004). Mr.

Samora-Sanchez sought a writ of certiorari from the Supreme Court.

Subsequently, the Supreme Court rendered its decision in Booker, and vacated and

remanded this case for reconsideration in light of Booker.

      On remand, Mr. Samora-Sanchez offers two arguments for requiring the

district court to resentence him. First, he contends that his argument at

sentencing that the Sentencing Guidelines violated the separation of powers was

sufficient to preserve his argument that his sentence violates the Sixth

Amendment. If he properly preserved the error, he continues, the error was not

harmless and requires a remand for resentencing. In the alternative, Mr. Samora-

Sanchez argues that if he did not properly preserve the error his sentence was

plainly erroneous and should be remanded to the district court. We disagree with

both arguments and AFFIRM.

                                          I.

      On October 14, 2003, a Border Patrol Agent encountered Mr. Samora-




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Sanchez in a Greyhound bus station in Albuquerque, New Mexico. 1 Mr. Samora-

Sanchez admitted that he was a Mexican citizen illegally in the United States. A

check of immigration records revealed that Mr. Samora-Sanchez had been

deported from Laredo, Texas on February 28, 2001. This deportation occurred

after he was convicted in June 2000 in Oklahoma of assault with a deadly weapon

and of carrying a firearm while intoxicated. There was no record of Mr. Samora-

Sanchez receiving consent from the Secretary of Homeland Security to reapply for

admission into the United States.

      Mr. Samora-Sanchez entered into an agreement pleading guilty to the

offense of reentry of a deported alien previously convicted of an aggravated

felony in violation of 8 U.S.C. § 1326(a)(1) and (2), and (b)(2). At sentencing he

requested a downward departure of two levels, based on U.S.S.G. § 5H1.6, due to

his extensive family obligations. The district court rejected the departure, but did

express sympathy for Mr. Samora-Sanchez’s situation:

      I am unable to come to the conclusion that his case falls outside the
      heartland. And I would like to help you, but my judgment is that if I
      did, I would be abusing my discretion and treating him differently
      than others in the same situation. And I’m therefore unable to
      conclude that his case warrants a downward departure. I have
      personally seen in Central and South America the poverty and
      difficulty that people such as his relatives have in making a living,


      1
       This factual overview borrows liberally from the original order and
judgment. United States v. Samora-Sanchez, 122 Fed. Appx. 909, 910 (10th Cir.
2004).

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      and I wish there was something more I could do; but I can’t do this.

Sent. Tr. 12, Aplt. Supp. Br., Attachment B. Mr. Samora-Sanchez also challenged

the constitutionality of the Guidelines as a whole and the constitutionality of the

PROTECT Act on the grounds that the Guidelines and the PROTECT Act violated

the separation of powers.

      On his initial appeal Mr. Samora-Sanchez confined his claims to the

separation of powers arguments. This Court rejected Mr. Samora-Sanchez’s

argument about the PROTECT Act because he lacked standing and rejected the

claim about the Guidelines on the merits. Samora-Sanchez, 122 Fed. Appx. at

910-11. Mr. Samora-Sanchez petitioned the Supreme Court for a writ of

certiorari. The Court granted the petition, vacated the original judgment, and

remanded for reconsideration in light of United States v. Booker, 125 S.Ct. 738

(2005). Samora-Sanchez, 125 S.Ct. at 1867.

                                         II.

      Mr. Samora-Sanchez first argues that he preserved any Booker error and we

should review his sentence for harmless error. We disagree. At sentencing, Mr.

Samora-Sanchez challenged the constitutionality of the Guidelines as a whole and

the PROTECT Act on separation of powers grounds. Booker is not a separation

of powers case. Booker holds that it violates the Sixth Amendment to increase a

defendant’s sentence mandatorily on the basis of judge-found facts. Booker, 125


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S.Ct. at 756. While this Court liberally construes challenges to the Guidelines

based on the Sixth Amendment, Apprendi, Blakely, or variants thereof, as

preserving Booker error (even if the defendant did not precisely anticipate the

Supreme Court’s holding in Booker), see United States v. Labastida-Segura, 396

F.3d 1140, 1142-43 (10th Cir. 2005), not all constitutional challenges to the

Guidelines are within the ballpark of Booker error. Mr. Samora-Sanchez’s

arguments were grounded in the separation of powers, and not the Sixth

Amendment, and thus did not suffice to preserve the issue. Accordingly, harmless

error analysis is not appropriate in this case.

      We turn to Mr. Samora-Sanchez’s alternative argument that his sentence

constitutes plain error. To show plain error Mr. Samora-Sanchez must show that

the district court: (1) committed error, (2) that was plain, (3) affected his

substantial rights, and (4) the error seriously affects the fairness, integrity, or

public reputation of the judicial proceedings. United States v. Cotton, 535 U.S.

625, 631-32 (2002). There are two types of Booker plain errors: constitutional

and non-constitutional. See United States v. Gonzalez-Huerta, 403 F.3d 727, 731-

32 (10th Cir. 2005) (en banc). Constitutional errors are a consequence of

mandatorily increasing a sentence on the basis of judge-found facts while non-

constitutional errors arise when defendants receive sentences pursuant to

mandatory guidelines. Id. The parties agree that this case involves only non-


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constitutional errors because the judge did not find any facts that enhanced Mr.

Samora-Sanchez’s sentence. Moreover, the government concedes the first three

prongs of the plain error test. Thus, we confine our analysis to whether it would

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

proceedings to leave the non-constitutional error in Mr. Samora-Sanchez’s

sentence uncorrected.

      Satisfying this fourth prong of the plain error test places a “demanding”

burden on Mr. Samora-Sanchez. Id. at 737. We will not correct a non-

constitutional error unless the error is “particularly egregious.” United States v.

Gilkey, 118 F.3d 702, 704 (10th Cir. 1997). Mr. Samora-Sanchez argues that his

situation is similar to that of the defendant in United States v. Trujillo-Terrazas,

405 F.3d 814 (10th Cir. 2005), where we remanded a sentence with non-

constitutional Booker error for resentencing. The defendant in Trujillo-Terrazas

demonstrated that “a principled application of the post-Booker sentencing

framework” would suggest a substantially different sentence than the actual

sentence he received. Id. at 821. Mr. Samora-Sanchez contends that the

application of the post-Booker sentencing regime, which uses advisory Guidelines

in conjunction with the sentencing factors set forth in 18 U.S.C. § 3553(a), would

also counsel a lower sentence than the one he actually received.

      This position, however, ignores the emphasis that Trujillo-Terrazas placed


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on the uniqueness of the defendant’s situation. The defendant in Trujillo-

Terrazas received a substantial increase in his sentence because a trifling prior

conviction qualified as a crime of violence. Id. at 817 (defendant received a 16-

level enhancement as a consequence of an arson that destroyed $35.00 worth of

property). Thus, the defendant’s sentence had the particularly egregious character

necessary to satisfy the demanding standard of the fourth prong in non-

constitutional cases. However, Trujillo-Terrazas emphasized that “run of the

mill” non-constitutional cases where, for example, “a defendant pleads guilty and

there is nothing remarkable about his criminal history,” will rarely satisfy the

fourth prong. Id. at 820. This is so even if the “defendant can demonstrate that

the district court felt particular sympathy for him.” Id. at 821.

      Mr. Samora-Sanchez’s case is one of these “run of the mill” cases. He

pleaded guilty and he has not pointed out anything in the facts of his case or his

criminal history that renders the application of the Guidelines inappropriate, let

alone egregious. While it is true that the district court expressed sympathy for

Mr. Samora-Sanchez’s plight (“I wish there was something more I could do”), the

district court also stated that giving Mr. Samora-Sanchez a lower sentence would

treat him “differently than others in the same situation.” Sent. Tr. 12, Aplt. Supp.

Br., Attachment B. Allowing differential treatment of similarly situated

defendants would run counter to the central purpose of the Guidelines, even as


                                          -7-
revised in Booker. In rendering the Guidelines advisory, the remedial majority

emphasized that it was “critically important” to adhere to the goal of the

Sentencing Act to eliminate sentencing disparity. Booker, 125 S.Ct at 761. As

we noted in Gonzalez-Huerta, allowing remands in non-unique cases of non-

constitutional Booker error would suggest that the tens of thousands of sentences

determined under the then-mandatory Guidelines called the fairness, integrity, or

public reputation of judicial proceedings into question. 403 F.3d at 739.

Accordingly, we AFFIRM Mr. Samora-Sanchez’s sentence.



                                               Entered for the Court,

                                               Michael W. McConnell
                                               Circuit Judge




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