               Not For Publication in West's Federal Reporter
              Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                       For the First Circuit

No. 03-1425

                             UNITED STATES,

                                Appellee,

                                     v.

                              JOSE GUZMAN,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

       [Hon. Carmen Consuelo Cerezo, U.S. District Judge]


                                  Before

                       Boudin, Chief Judge,
              Torruella and Howard, Circuit Judges.



     Jane Elizabeth Lee on brief for appellant.
     H.S. Garcia, United States Attorney, and Nelson Perez-Sosa,
Assistant U.S. Attorney, on brief for appellee.



                             August 4, 2005
     Per Curiam. Jose Guzman appeals from his sentence.                While his

appeal    was   pending,     the   Supreme     Court    decided   Blakely       v.

Washington,     124 S. Ct. 2531 (2004), and United States v. Booker,

542 U.S. ___, 125 S. Ct. 738 (2005).         Guzman has filed supplemental

briefs raising claims under both Blakely and Booker.              Guzman pled

guilty to conspiring to possess with intent to distribute and to

distribute more than five kilograms of cocaine, in violation of 21

U.S.C. § 841(a)(1).        The statutory mandatory minimum sentence for

the offense to which he pled guilty is ten years' imprisonment. See

21 U.S.C. § 841(b)(1)(A)(ii). Guzman received a prison sentence of

ten years. Those three undisputed facts dispose of all of Guzman's

claims.

     I. Original Claim: Breach of Plea Agreement

     Guzman's original claim was that the government had breached

its plea agreement with him by referring in its amended motion

pursuant to U.S.S.G. §5K1.1 to a Guidelines sentencing range beyond

what the plea agreement had contemplated.                 He sought specific

performance     of   the    plea   agreement    and     resentencing     with    a

recommendation by the government for a sentence based on a base

offense level of 32.

     It is unnecessary to decide whether the government breached

the plea agreement by referring in its amended § 5K1.1 motion to a

guideline     imprisonment     range    of   262   to    327   months,     which

corresponded with the offense level calculated under § 4B1.1, the


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career offender Guidelines provision, rather than with the offense

level calculated under § 2D1.1, based on drug quantity (which would

yield an imprisonment range of 151 - 188 months).                 Guzman concedes

that the issue was not raised below and, therefore, that plain

error review applies.       Even if there had been a breach, Guzman

cannot   satisfy   the   third    prong    of    plain    error    review,   which

requires a showing that the error "affects substantial rights."

United States v. Olano, 507 U.S. 725, 732 (1993).

     The government neither agreed to request nor requested a

departure in accord with 18 U.S.C. § 3553(e), below the statutory

mandatory minimum sentence.          The government requested that the

sentencing court depart below the applicable Guidelines sentencing

range to impose a sentence of 120 months, the statutory mandatory

minimum.   The sentencing court granted that request.                  Therefore,

Guzman has not shown that the alleged breach affected his sentence.

     II. Blakely/Booker Claims

     In his first supplemental brief, Guzman argues that his

sentence is invalid under Blakely because the facts underlying his

career offender enhancement (specifically his age and the fact of

his prior offenses) were not found by a jury or admitted by him.

In his second supplemental brief, he argues that he is entitled to

remand for resentencing under Booker because he was sentenced under

a   mandatory   Guidelines       system    and    there     was    a   reasonable

probability that he would receive a lighter sentence under an


                                     -3-
advisory Guidelines system.           Neither claim has merit.

       Guzman received the mandatory minimum statutory sentence for

the offense to which he pled guilty, i.e., conspiring to possess

with       intent   to   distribute   and   to   distribute   more    than   five

kilograms of cocaine.         Therefore, there was no enhancement of his

sentence based on judge-found facts. "A mandatory minimum sentence

imposed as required by a statute based on facts found by a jury or

admitted by a defendant is not a candidate for Booker error."

Antonakopoulos, 399 F.3d at 75; see United States v. Bermudez, 2005

WL 1208131, No. 04-1222, slip op. at 19-20 (1st Cir. May 23, 2005).

       In addition, "the rationale of Apprendi does not apply to

sentence-enhancement          provisions      based   upon    prior    criminal

convictions." United States v. Moore, 286 F.3d 47, 51 (1st Cir.

2002); see also United States v. Stearns, 387 F.3d 104, 107 (1st

Cir. 2004) (holding that the fact of a prior conviction is beyond

the ambit of Blakely), cert. denied, __ U.S. __, 125 S. Ct. 1614

(2005).        Post-Booker it remains the law that "prior criminal

convictions are not facts that a jury must find beyond a reasonable

doubt." United States v. Lewis, 406 F.3d 11, 21 n. 11 (1st Cir.

2005).1


       1
       To the extent that Guzman based his Blakely claim on the
judicial factfinding with respect to his age at the time the
offense was committed, that argument is frivolous. Guzman did not
object below to the PSR's reporting of his birth date as 1966
(making him 35 at the time the offense was committed). "In the
post-Apprendi world, this court adopted a rule that any such error
in sentencing should be held harmless so long as the evidence of

                                        -4-
     Defendant-Appellant's Motion to Proffer Facts Not on the

Record is granted.   Guzman's conviction and sentence are affirmed.

See 1st Cir. R. 27(c).




the trial judge's factual findings is overwhelming and no
reasonable jury could have disagreed with them." United States v.
Morgan, 384 F.3d 1, 8 (1st Cir. 2004).

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