                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                 UNITED STATES COURT OF APPEALS                            APR 28 2005

                                 TENTH CIRCUIT                        PATRICK FISHER
                                                                                Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 04-2222
 v.
                                                    (D.C. No. 04-309 RB)
                                                       (New Mexico)
 CRUZ MANUEL QUINTANA-
 PONCE,

          Defendant-Appellant.



                          ORDER AND JUDGMENT *


Before SEYMOUR, KELLY, and TYMKOVICH, Circuit Judges.


      Cruz Manuel Quintana-Ponce pled guilty to one count of illegal reentry

following deportation in violation of 8 U.S.C. §§ 1326(a)(1), (2) and (b)(2).

Based on a criminal history category of III and a total offense level of thirteen,

Mr. Quintana’s guidelines range was eighteen to twenty-four months


      *
       After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
imprisonment. The district court sentenced him at the bottom of that range to an

eighteen month term. On appeal, Mr. Quintana contends the district court

committed error at sentencing by assessing criminal history points for prior

uncounseled misdemeanor convictions. He also contends his sentence was

unconstitutionally enhanced pursuant to Blakely v. Washington, 124 S. Ct. 2531

(2004), based on a finding of the existence and nature of prior convictions which

were neither charged in the indictment nor proven to a jury. We affirm in part

and reverse in part, remanding for resentencing. 1

      Mr. Quintana pled guilty to one count of illegal reentry following

deportation, which yielded a base offense level of eight. U.S.S.G. § 2L1.2(a).

His presentence report (PSR) recommended an eight level increase due to a

finding that Mr. Quintana had a prior aggravated felony conviction. Id. §

2L1.2(b)(1)(C). The PSR also recommended a three-level downward adjustment

to his offense level for acceptance of responsibility, id. §3E1.1, resulting in a

total offense level of thirteen.

      Mr. Quintana’s criminal history included points for a 1995 conviction for

drunk driving, a 2000 conviction for careless driving and possession of cocaine, a

2000 conviction for drunk driving, a 2001 conviction for concealment of identity,


      1
       We note that Mr. Quintana has been incarcerated on his eighteen month
sentence since early December 2003. Therefore, unless his resentencing is
expedited, he will be released before it can be accomplished.

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and a 2002 conviction for obstructing a police officer. He objected to the points

assessed for three of those convictions, arguing that they were constitutionally

infirm because he had been denied his right to counsel in state court proceedings.

He contends the government failed to produce evidence that he either was

represented by counsel or waived the right to counsel. The government submits

that a presumption of regularity attaches to state court convictions and Mr.

Quintana failed to meet his burden to overcome the presumption. We agree.

      Mr. Quintana had a right to counsel for the prior misdemeanor convictions.

See Argersinger v. Hamlin, 407 U.S. 25, 37 (1972); see also Alabama v. Shelton,

535 U.S. 654, 657-58 (2002). Once the government establishes the existence of a

prior conviction, however, it becomes the defendant’s burden to prove by a

preponderance of evidence that the conviction was unconstitutional. United

States v. Cruz-Alcala, 338 F.3d 1194, 1197 (10th Cir. 2003); United States v.

Windle, 74 F.3d 997, 1001 (10th Cir. 1996). This is because a “presumption of

regularity” attaches to final judgments even when a waiver of constitutional rights

is at issue. Parke v. Raley, 506 U.S. 20, 29 (1992).

      Mr. Quintana has not met his burden to overcome the presumption of

regularity. Much like the defendant in Cruz-Alcala, Mr. Quintana offered

testimony that he was not represented by counsel and did not knowingly waive his

right to counsel in the state court proceedings at issue. See 338 F.3d at 1198.


                                         -3-
After considering Mr. Quintana’s testimony, the district court implicitly found he

was not credible and ruled that he had validly waived his right to counsel in the

earlier cases:

      [t]aking [defendant’s] proffer at face value and weighing that against his
      significant history associated with the criminal courts in that area . . . I
      don’t believe that he has overcome the presumption of regularity that
      attaches to final Judgments.

Sent. Tr. at 14. We must defer to the district court’s credibility determinations.

Cruz-Alcala, 338 F.3d at 1198. As a result, we conclude the district court did not

commit error by including Mr. Quintana’s prior uncounseled misdemeanor

convictions in calculating his criminal history.

      Mr. Quintana next argues his Sixth Amendment rights were violated

because neither the existence of his prior convictions nor the classification of any

of those convictions as aggravated felonies was charged in his indictment,

admitted by him, or found by a jury, citing Blakely. In Blakely, the Supreme

Court applied the rule it expressed in Apprendi v. New Jersey, 530 U.S. 466

(2000), to Washington state’s determinate sentencing regime. See Blakely, 124 S.

Ct. at 2536. Recently, the Court extended Apprendi and Blakely to the Federal

Sentencing Guidelines, holding that the Sixth Amendment requires “[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

                                         -4-
doubt.” United States v. Booker, 125 S. Ct. 738, 756 (2005).

      The district court’s findings that Mr. Quintana previously committed crimes

and that at least one of those crimes was an aggravated felony fall within the

exception to the Blakely/Booker rule for the “fact of a prior conviction.” Blakely,

124 S. Ct. at 2536. Although an indictment must set forth each element of the

crime it charges, the Supreme Court has explicitly held that the constitution does

not require Congress to treat recidivism as an element of the offense.

Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998). Therefore, the

government’s failure to plead Mr. Quintana’s prior convictions (or the nature of

those convictions) in his indictment does not constitute constitutional error. See

United States v. Moore, 401 F.3d 1220, 1221 (10th Cir. 2005) (“Booker . . . do[es]

not require the government to charge in an indictment or prove to a jury either the

existence of prior convictions or their classification as ‘violent felonies’”).

       If Booker consisted only of a constitutional holding, Mr. Quintana’s appeal

would be meritless because he did not suffer a Sixth Amendment violation.

However, to remedy the guidelines’ constitutional violation, the Court severed

and excised 18 U.S.C. § 3553(b)(1), which required sentencing courts to impose a

sentence within the applicable guidelines range, subject to departures in limited

cases. Booker, 125 S. Ct. at 764-65. As a result, the guidelines are now advisory

in all cases. Id. at 757, 769. In addition, the Court expressly stated that its


                                          -5-
“remedial interpretation of the Sentencing Act” must be applied “to all cases on

direct review.” Id. at 769. We must therefore apply the remedial holding of

Booker to Mr. Quintana’s appeal and review his sentence for harmless error.

United States v. Labastida-Segura, 396 F.3d 1140, 1142 (10th Cir. 2005).

      The district court plainly sentenced Mr. Quintana with the erroneously held

belief that it was required to impose a sentence within the guidelines range. See

id. at 1143. We held in Labastida-Segura that where the district court sentenced

a defendant (who properly preserved his non-constitutional Booker error for

appellate review) at the bottom of the guidelines range, we cannot conclude that

the error is harmless. Id. That holding is applicable here.

      Accordingly, we AFFIRM the district court’s determination that Mr.

Quintana’s misdemeanor convictions were properly counted against him, but we

REMAND his case with directions to the district court to vacate his sentence and

resentence him in light of Booker.


                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Circuit Judge




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