                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                      December 13, 2005
                      UNITED STATES COURT OF APPEALS
                                                                         Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 04-6269
 v.
                                                  (D.C. No. CR-03-112-M)
                                                        (W.D. Okla.)
 DAVID BAO LE,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before EBEL, McKAY and HENRY, Circuit Judges.


      David Bao Le pleaded guilty to conspiracy to possess and distribute a

controlled substance. The district court sentenced Mr. Le to 235 months in prison

but gave two alternative sentences: a 235-month sentence in case the Sentencing

Guidelines were found unconstitutional and a 151-month sentence in case just the



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
upward enhancements were found unconstitutional. On appeal, Mr. Le contends

that he should receive the 151-month sentence. We disagree and affirm.

I. Background

      As described in our opinion in a related case, see United States v.

Sengkhamvilay, No. 04-6217, slip op. at 2 (10th Cir. December 13, 2005)

(unpublished), law enforcement officers began investigating an Oklahoma City

“ecstasy” ring in the fall of 2001. Mr. Le was arrested during the course of that

investigation. He eventually pleaded guilty to a charge of conspiracy both to

possess with intent to distribute and to distribute in excess of 500,000 tablets of

ecstasy and in excess of five kilograms of cocaine powder, in violation of 21

U.S.C. §§ 841(a)(1) & 846.      At the sentencing hearing, which came after the

Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004), but

before the decision in United States v. Booker, 543 U.S. 220 (2005), counsel for

Mr. Le objected on the basis of Blakely. However, he also stated:

      [W]hat I would like to tell the Court is that we are willing to go forward
      with our sentencing today, that the base offense level of 34 will be
      unchallenged today, and the possession of a firearm, the two-point
      enhancement, will not be challenged today.
            We would ask the Court to accept a stipulation between ourselves
      and the Government that there should be an adjustment for the role in
      the offense for two points, as compared to four points. There will be
      no other challenges today to the sentence. We would ask the Court to
      sentence Mr. Le under a total offense level of 38.




                                         -2-
Mr. Le also withdrew his factual objections to the presentence report, other than

an objection to the recommendation that there be no reduction for acceptance of

responsibility. The court denied that objection and, based upon an offense level

of 38, imposed a sentence of 235 months — the bottom of the Guideline range.

Wary of the ramifications of Blakely, the court also imposed two alternative

sentences. As reflected in the judgment, the court ruled

      that if the U.S. Sentencing Guidelines, in their entirety, are later found
      to be unconstitutional, the defendant is alternatively sentenced to 235
      months, and that if only the upward enhancements of the U.S.
      Sentencing Guidelines are later found to be unconstitutional, the
      defendant is alternatively sentenced to 151 months.

Mr. Le timely appealed his sentence. 1

II. Discussion

      The district court’s application of the Guidelines in a mandatory fashion

was non-constitutional Booker error. 2 See United States v. Gonzalez-Huerta, 403

F.3d 727, 731 (10th Cir. 2005) (en banc). Because Mr. Le’s Blakely objection

properly preserved that error, we review to determine whether the error was

harmless. See United States v. Labastida-Segura, 396 F.3d 1140, 1142–43 (10th

Cir. 2005). Although non-constitutional Booker error is not harmless when “we


      We previously denied the Government’s motion to enforce the plea
      1

agreement and dismiss this appeal.
      2
       There was no constitutional error — the district court was not required to
do any fact-finding because Mr. Le affirmatively “accept[ed] the statements in the
Presentence Report as facts.”

                                         -3-
are unable to say, without undue speculation, that the district court would have

imposed the same sentence on remand,” such error is harmless when “we are not

required to engage in any speculation . . . because the district court explained

exactly what it would do if the Guidelines were found unconstitutional.” United

States v. Corchado, 427 F.3d 815, 821 (10th Cir. 2005).

      Accordingly, the error in this case was harmless. The district court

concluded that if the Guidelines were found unconstitutional, it would apply an

identical alternative sentence of 235 months. The district court stated that a 235-

month sentence

      reflects the seriousness of the offense in this case. It promotes respect
      for the law. It provides just punishment for the offense. The Court
      would further find that the sentence affords adequate deterrence to
      further criminal conduct of this Defendant and it protects the public
      from further crimes of this Defendant.

Additionally, the court noted that it arrived at the alternative 235-month sentence

“based upon the nature of the offense involved, the quantity of drugs involved,

the Defendant’s role in the offense, the Defendant’s use of a firearm in relation to

the offense, and the Defendant’s criminal history.” Therefore, “we do not need to

read any tea leaves to determine what the district court would do on remand”

because “the district court announced an [identical] alternative sentence, which

applied the methodology suggested by Booker.” United States v.

Serrano-Dominguez, 406 F.3d 1221, 1223 (10th Cir. 2005).


                                         -4-
         Although the court also suggested an alternative sentence of 151 months, it

did so in case “only the upward enhancements of the U.S. Sentencing Guidelines

are . . . found to be unconstitutional,” such that the court could not apply upward

enhancements. Because Booker did not preclude application of upward

enhancements, the district court’s precautionary recitation of a 151-month

alternative sentence does not make us any less “confident that the district court

would impose the same sentence upon remand.” Corchado, 427 F.3d at 821.

Thus, the error was harmless and remand is unnecessary. 3

III. Conclusion

         For the foregoing reasons, we AFFIRM the sentence imposed by the district

court.

                                         ENTERED FOR THE COURT



                                         David M. Ebel
                                         Circuit Judge




       In any event, Mr. Le does not ask us to remand for de novo resentencing,
         3

but asks only that we either require the district court to impose the 151-month
alternative sentence or impose it ourselves. Because the condition on which the
alternative 151-month sentence was based did not occur, we decline to do so.

                                          -5-
