                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                       January 20, 2006
                                   TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                         Clerk of Court


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

v.                                                     No. 04-4278
                                                     (District of Utah)
ISRAEL GOMEZ-ASTORGA, also                     (D.C. No. 1:03-CR-62-12-TC)
known as Raul Arturo Gaitan-
Dominguez,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before BRISCOE, LUCERO and MURPHY, Circuit Judges.




      Israel Gomez-Astorga pleaded guilty to a single count of possession with

intent to distribute at least 500 grams of a mixture of substance containing

methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). Gomez-

Astorga’s sentencing took place after the Supreme Court decided Blakely v.


      *
       This order and judgment is not binding precedent, except under the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.
Washington, 542 U.S. 296 (2004), but before it decided United States v. Booker,

543 U.S. 220 (2005). Based on Blakely, Gomez-Astorga filed a motion asserting,

in only the most general fashion, that the United States Sentencing Guidelines

were unconstitutional. He further argued at sentencing that, based on Blakely, the

government could not go forward with its proposed enhancement to Gomez-

Astorga’s base offense level based on his role in the offense, but was instead

limited to the admissions set out in the plea agreement. The district court rejected

Gomez-Astorga’s assertion that the Guidelines were unconstitutional, but

ultimately based his offense level solely on the amount of drugs Gomez-Astorga

had admitted in his plea agreement. On appeal, Gomez-Astorga presents only the

following narrow issue: basing a sentence on a mandatory Guidelines scheme is

structural error necessitating correction in every case. He recognizes, however,

because he did not raise this issue below, review in this court is limited to plain

error. Fed. R. Crim. P. 52(b). He further recognizes that his claim is foreclosed

by this court’s en banc decision in United States v. Gonzalez-Huerta, 403 F.3d

727, 734 (10th Cir. 2005) (en banc) (holding that “non-constitutional Booker error

is not structural error”). He merely seeks to preserve the issue for a petition for a




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writ of certiorari to the Supreme Court. He has done so. The judgment of the

United States District Court for the District of Utah is hereby AFFIRMED.

                                     ENTERED FOR THE COURT



                                     Michael R. Murphy
                                     Circuit Judge




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