                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          August 31, 2005
                                TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                 Nos. 04-3356 and 04-3357
          v.                                              (D. of Kan.)
 JOSE JAVIER LOZA,                            (D.C. Nos. 03-CR-10122-01-WEB
                                                 and 04-CR-10047-01-WEB)
               Defendant-Appellant.


                           ORDER AND JUDGMENT             *




Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges.            **




      Defendant-Appellant Jose Javier Loza appeals the sentence imposed upon

him by the United States District Court for the District of Kansas following his

convictions for violating 21 U.S.C. § 841 and 18 U.S.C. § 3146(a)(1). Loza

argues (1) his sentence violates United States v. Booker, 125 S. Ct. 738 (2005),

and (2) the district court erred by engaging in insufficient fact-finding prior to


      *
         This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
determining that his sentence should not be reduced for acceptance of

responsibility pursuant to § 3E1.1 of the 2003 edition of the United States

Sentencing Guidelines (USSG). We have jurisdiction under 28 U.S.C. § 1291 and

18 U.S.C. § 3742(a), and remand for resentencing.

                                   Background

      The factual background of this case is not in dispute and we need not

recount it in detail here. In brief, a Kansas state highway patrol officer

apprehended Loza transporting marijuana on June 27, 2003, and he was charged

for possession with the intent to distribute more than 100 kilograms of marijuana,

in violation of 21 U.S.C. § 841. Thereafter, Loza was released on bond and failed

to appear for a status conference on August 15, 2003. The United States Marshals

Service arrested him attempting to reenter the United States from Mexico on

February 19, 2004, and he was charged for failure to appear, in violation of 18

U.S.C. § 3146(a)(1).

      After the district court denied Loza’s motion to suppress the evidence

gathered during the traffic stop, he pled guilty to both charges. The Presentence

Investigation Report (PSR) recommended a base offense level of 26 for the drug

conviction and a two-level enhancement for obstruction of justice for the failure

to appear conviction pursuant to USSG § 3C1.1. The PSR also recommended

against a downward departure for acceptance of responsibility pursuant to USSG


                                         -2-
§ 3E1.1. It therefore arrived at a total offense level of 28, which, when combined

with Loza’s criminal history category of I, yielded a sentencing range of 78-97

months.

      Loza objected to the PSR, arguing that he was entitled to a reduction for

acceptance of responsibility and also that Blakely v. Washington, 542 U.S. 296

(2004), required a jury to make that determination. The district court found

Blakely inapplicable because (1) Loza had waived his right to a jury trial by

pleading guilty and agreeing to have his sentence determined under the

Guidelines, and (2) Blakely did not apply to the question of whether a defendant

is entitled to a sentence reduction for acceptance of responsibility. The court also

concluded Loza was not entitled to a reduction for acceptance of responsibility

because his absconsion was inconsistent with an affirmative demonstration of

acceptance of responsibility, notwithstanding his subsequent guilty pleas. The

court then adopted the PSR without change and sentenced Loza to 78 months

imprisonment, the low-end of the applicable sentencing range.

                                    Discussion

      On appeal, Loza makes three arguments in support of his claim that he is

entitled to resentencing, two of which relate to alleged violations of Booker, 125

S. Ct. 738. First, he argues the district court violated the Sixth Amendment and

committed constitutional Booker error when it denied his request to have a jury


                                         -3-
determine whether he was entitled to a sentence reduction for acceptance of

responsibility. 1 Second, that the district court committed non-constitutional

Booker error by treating the Guidelines as mandatory at sentencing. See United

States v. Gonzalez-Huerta, 403 F.3d 727, 731–32 (10th Cir. 2005) (en banc)

(explaining constitutional and non-constitutional Booker error). Third, in case

Booker does not require a jury to determine the applicability of the reduction for

acceptance of responsibility, that the district court engaged in insufficient fact-

finding before denying the reduction.

      We need not address Loza’s argument that Booker requires a jury to

determine whether a defendant is entitled to a sentence reduction, nor his

alternative argument that the district court otherwise erred in denying the

reduction, because we remand for resentencing based on non-constitutional

Booker error. The government concedes that a non-constitutional Booker error

occurred and that Loza properly preserved this claim by raising Blakely before the

district court. See Aple. Br. at 10–11. Accordingly, our task is to determine

whether the error was harmless. See United States v. Labastida-Segura, 396 F.3d

1140, 1142–43 (10th Cir. 2005) (where defendant properly preserves Booker

claim, actual non-constitutional Booker error subject to harmless error review).



      1
        Loza does not argue that imposition of the sentencing enhancement for
obstruction of justice violated Booker.

                                          -4-
      The government argues the error was harmless because the district court

would impose the same sentence on remand. To support this argument, the

government relies on the fact the same district court judge in an unrelated case

imposed an alternative sentence finding that he would have given the sentence

recommended by the Guidelines if the Guidelines were inapplicable. This

argument is unpersuasive. The fact the judge issued an alternative sentence in

another case does not demonstrate he would find the sentence called for by the

now-advisory Guidelines appropriate in this case. Here, the district court

sentenced Loza to the low-end of the range established by the then-mandatory

Guidelines without consideration of an alternative sentence or a suggestion it

would have imposed the same sentence if the Guidelines did not apply.

      Thus, we are left with the same situation as in Labastida-Segura, 396 F.3d

at 1142–43. We are not faced with circumstances similar to United States v.

Serrano-Dominguez, 406 F.3d 1221, 1223–24 (10th Cir. 2005), in which we found

the non-constitutional Booker error harmless where the district court imposed an

alternative sentence. Accordingly, as in Labastida-Segura, the case must be

remanded for resentencing.




                                         -5-
                                   Conclusion

      The non-constitutional Booker error was not harmless. Therefore, we

remand for resentencing in light of Booker.



                                              Entered for the Court

                                              Timothy M. Tymkovich
                                              Circuit Judge




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