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

 UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,                    No. 04-1310
           v.                                              (D. Colorado)
 GERMAN ARROYO-BERZOZA,                              (D.C. No. 04-CR-120-B)

                  Defendant - Appellant.


                                ORDER AND JUDGMENT         *




Before TACHA, Chief Judge, ANDERSON and BALDOCK , Circuit Judges.




       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in 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.

       Defendant/appellant German Arroyo-Berzoza appeals his sentence

following a plea of guilty to one count of unlawful reentry by a previously


       This order and judgment is not binding precedent, except under the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.
deported alien, in violation of 8 U.S.C. § 1326. He was sentenced to forty-one

months’ imprisonment, followed by three years of supervised release. We

REMAND for resentencing.

      The indictment alleged that Arroyo-Berzoza, after being convicted of an

aggravated felony (possession of a controlled substance with intent to distribute),

was deported from the United States and was thereafter found in the United States

on March 5, 2004, without first gaining permission from the Attorney General.

Arroyo-Berzoza entered into a written plea agreement, in which he admitted the

conduct charged in the indictment and the government agreed to recommend a

3-level decrease in his offense level for acceptance of responsibility.

      Prior to sentencing, Arroyo-Berzoza filed a motion seeking a declaration

that the United States Sentencing Commission,       Guidelines Manual (“USSG”),

were unconstitutional under the Supreme Court’s recent decision in        Blakely v.

Washington , 124 S. Ct. 2531 (2004).   1
                                           More specifically, he argued that   Blakely

applied to the Guidelines, that the unconstitutional provisions of the Guidelines



      1
        When Arroyo-Berzoza raised Blakely both to the district court and to this
court, the Supreme Court had not yet issued United States v. Booker, 125 S. Ct.
738 (2005). However, raising Blakely is sufficient to raise an argument under
Booker. Accordingly, he has preserved an argument under both cases before the
district court and before us, and we hereinafter refer to them collectively as
Blakely/Booker. We granted both parties permission to file supplemental briefs
before us on the effect of Booker, although the government elected not to file
one.

                                            -2-
were not severable, that the Guidelines represented an unconstitutional delegation

of Congressional power to the Sentencing Commission to define crimes, and that,

by joining the power to define crimes with other powers exercised by the

Sentencing Commission, Congress violated the separation of powers doctrine.         2



      The district court held at Arroyo-Berzoza’s sentencing hearing that the

Guidelines were constitutional and must be applied. The court accordingly

sentenced Arroyo-Berzoza to forty-one months’ imprisonment, at the low end of

the Guideline range, followed by three years of supervised release. He appeals,

arguing that the district court’s application of an unconstitutional Guidelines

system necessitates resentencing.

      In United States v. Booker , 125 S. Ct. 738 (2005), the Supreme Court held

that Blakely applies to the federal Sentencing Guidelines, such that, to avoid a

Sixth Amendment violation, “[a]ny fact (other than a prior conviction) which is

necessary to support a sentence exceeding the maximum authorized by the facts

established by a plea of guilty or a jury verdict must be admitted by the defendant

or proved to a jury beyond a reasonable doubt.”   Id. at 756. It is clear that no

Sixth Amendment violation occurred in this case because all relevant sentencing

facts were admitted by Arroyo-Berzoza.



      2
       The unconstitutional delegation and separation of powers arguments are
foreclosed by Booker, 125 S. Ct. at 752-55.

                                           -3-
       However, as we recently observed in a virtually identical case:

       [T]he Supreme Court also imposed a global remedy for the Sixth
       Amendment difficulties with the Sentencing Guidelines, invalidating
       their mandatory application and instead requiring district courts to
       consult them in an advisory fashion. That plainly did not occur in
       this case. Had it occurred, our task would be to determine whether
       the sentence is unreasonable considering the factors in 18 U.S.C.
       § 3553(a).

United States v. Labastida-Segura    , No. 04-1311, 2005 WL 273315, at *1 (10th

Cir. Feb. 4, 2005) (citing   Booker , 125 S. Ct. at 756-57 (excising 18 U.S.C.

§§ 3553(b)(1), 3742(e)). We accordingly determined that “[w]e must apply the

remedial holding of Booker to [defendant’s] direct appeal even though his

sentence does not involve a Sixth Amendment violation.”       Id. at *2.

       After noting that sentencing errors can be determined to be harmless in

particular circumstances, we concluded that the district court’s error of sentencing

the defendant in Labastida-Segura while believing the Guidelines were mandatory

was not harmless:

       Here, where it was already at the bottom of the guidelines range, to
       say that the district court would have imposed the same sentence
       given the new legal landscape (even after consulting the Sentencing
       Guidelines in an advisory capacity) places us in the zone of
       speculation and conjecture—we simply do not know what the district
       court would have done after hearing from the parties. Though an
       appellate court may judge whether a district court exercised its
       discretion (and whether it abused that discretion), it cannot exercise
       the district court’s discretion.




                                           -4-
Id. We discern no material difference between this case and   Labastida-Segura . 3

Accordingly, in reliance thereon, we REMAND this case for resentencing.

REMANDED.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




      3
        The government has submitted a letter indicating its agreement that, in
light of Labastida-Segura , this case must be remanded.

                                          -5-
