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

                                                                  October 25, 2005
                UNITED STATES COURT OF APPEALS

                       FOR THE TENTH CIRCUIT                        Clerk of Court



UNITED STATES OF AMERICA,

         Plaintiff-Appellee,
                                                  No. 04-3398
v.                                             (District of Kansas)
                                            D.C. No. 04-10122-01 JTM
SERGIO NUNEZ-ONTIVEROS,

         Defendant-Appellant.




                        ORDER AND JUDGMENT *


Before TACHA, Chief Judge, MURPHY and TYMKOVICH, Circuit
Judges.



     The defendant pled guilty to illegal reentry by an alien deported

subsequent to a conviction for an aggravated felony. On appeal, he

challenges a 16-level enhancement based on a prior conviction imposed by


     *
       The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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and judgment is not binding precedent, except under the doctrines of law of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.
the district court. He argues that under United States v. Booker, 125 S.Ct.

738 (2005), the district court erred in believing that the Sentencing

Guidelines are mandatory, and that under Booker and Blakely v.

Washington, 542 U.S. 296 (2004), a prior conviction may not be used to

support a sentence enhancement unless it is admitted by the defendant or

proven beyond a reasonable doubt. We vacate the defendant’s sentence and

remand.

      The first issue we address is the government’s motion to enforce the

appellate waiver in the plea agreement. The plea agreement contained the

following waiver of appellate rights:

            7. Waiver of Appeal and Collateral Attack. With
            the exception noted below, defendant knowingly and
            voluntarily waives any right to appeal or collaterally
            attack any matter in connection with this
            prosecution, conviction and sentence. The
            defendant is aware that Title 18, U.S.C. § 3742
            affords a defendant the right to appeal the
            conviction and sentence imposed. By entering into
            this agreement, the defendant knowingly waives any
            right to appeal the conviction herein or a sentence
            imposed that is within the guideline range
            determined appropriate by the court. The defendant
            also waives any right to modify, change or challenge
            a sentence or manner in which it was determined in
            any collateral attack, including, but not limited to, a
            motion brought under Title 28, U.S.C. § 2255
            [except as limited by United States v. Cockerham,
            237 F.3d 1179, 1187 (10th Cir. 2001)] and a motion
            brought under Title 18, U.S.C. § 3582(c)(2). In
            other words, the defendant waives the right to

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          appeal the conviction and sentence imposed in this
          case except to the extent, if any, the court departs
          upwards from the applicable sentencing guideline
          range determined by the court. However, if the
          United States exercises its right to appeal the
          sentence imposed as authorized by Title 18, U.S.C.
          § 3742(b), the defendant is released from this
          waiver and may appeal the sentence received as
          authorized by Title 18, U.S.C. § 3742(a).

          The exception to this waiver of appellate rights is
          that if the sentencing court determines that the
          defendant is subject to the 16-level enhancement of
          U.S.S.G. § 2L1.2(b)(1)(A), the defendant reserves
          the right to a direct appeal of that determination. To
          the extent such an appeal requires the defendant to
          argue that the Blakely v. Washington case discussed
          below in Paragraph 8 precludes the 16-level
          enhancement, the parties agree that he hereby
          reserves his right to do so.

          8. Waiver of Blakely rights. The defendant agrees
          to waive any rights that may have been conferred
          under Blakely v. Washington, 2004 WL 1402697
          (June 24, 2004), and agrees to have the sentence in
          his case determined under the U.S. Sentencing
          Guidelines (Guidelines). The defendant further
          waives any right to have facts that determine the
          offense level under the Guidelines alleged in an
          indictment and found by a jury beyond a reasonable
          doubt; agrees the facts that determine the offense
          level will be found by the Court at sentencing by a
          preponderance of the evidence and agrees that the
          Court may consider any reliable evidence, including
          hearsay; and the defendant agrees to waive all
          constitutional challenges to the validity of the
          Guidelines.


(Emphasis added.)

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      The presentence report included a 16-level enhancement under §

2L1.2(b)(1)(A)(vii) because the defendant had previously been convicted

of transporting illegal aliens. The defendant objected to the enhancement,

arguing that the prior conviction had not been charged in the indictment or

proven to a jury beyond a reasonable doubt, as required by Blakely. He did

admit that he was subject to a 12-level enhancement for a sentence of

probation he had received following a prior conviction for the sale of

cocaine.

      The court rejected the defendant’s argument because the objection

dealt with a prior conviction and therefore was not within the scope of

Blakely. The resulting sentencing range was 46 to 57 months. The court

sentenced the defendant to 46 months.

      The government contends that the appellate waiver meets the

requirements of United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir.

2004) (“the court of appeals, in reviewing appeals brought after a defendant

has entered into an appeal waiver, determine[s]: (1) whether the disputed

appeal falls within the scope of the waiver of appellate rights; (2) whether

the defendant knowingly and voluntarily waived his appellate rights; and

(3) whether enforcing the waiver would result in a miscarriage of justice as

we define herein.”), and that both issues are precluded by the appellate


                                        4
waiver.

      However, after reviewing the plea agreement, we conclude that the

waiver is not enforceable at all because the waiver provisions are unclear.

These ambiguities are to be read in the defendant’s favor. See Hahn, 359

F.3d at 1325 (“In determining a waiver’s scope, we will strictly construe

appeal waivers and any ambiguities in these agreements will be read against

the Government and in favor of a defendant’s appellate rights.”) (internal

quotation omitted). Accordingly, we conclude that the defendant is not

bound by the appellate waiver.

      The district court committed non-constitutional Booker error by

sentencing the defendant through mandatory application of the guidelines.

See United States v. Gonzalez-Huerta, 403 F.3d 727, 731-32 (10th Cir.

2005), cert. denied, ___ S.Ct. ___, No. 05-6407, 2005 WL 229216 (Oct. 17,

2005). Because the defendant raised Blakely in the district court, we

review for harmless error. See United States v. Labastida-Segura, 396 F.3d

1140, 1142-43 (10th Cir. 2005) (noting that a Blakely objection is

sufficient to preserve a non-constitutional Booker error).

      Fed. R. Crim. P. 52(a) provides that “[a]ny error, defect, irregularity,

or variance that does not affect substantial rights must be disregarded.”

The error is harmless if it “did not affect the district court’s selection of the


                                         5
sentence imposed.” Labastida-Segura, 396 F.3d at 1143 (citation and

quotation omitted). The government has the burden of demonstrating that

the defendant’s substantial rights were not affected, which does not require

proof that the invalid factor was determinative in arriving at the sentence.

Williams v. United States, 503 U.S. 193, 203 (1992).

      The facts here are similar to those in Labastida-Segura. In that case,

the defendant was convicted of the same offense as the defendant, unlawful

entry of a previously deported alien. Like the defendant here, the defendant

challenged the constitutionality of the Guidelines at sentencing and was

overruled by the district judge, who found the Guidelines constitutional. In

addition, the district court, as here, imposed the lowest possible sentence

under what it considered to be mandatory Guidelines. We held that the

district court’s error was not harmless and warranted a remand for

resentencing.


            Here, where [the sentence imposed] was already at
            the bottom of the guidelines range, to say that the
            district court would have imposed the same sentence
            given the new legal landscape (even after consulting
            the Sentencing Guidelines in an advisory capacity)
            places us in the zone of speculation and
            conjecture--we simply do not know what the district
            court would have done after hearing from the
            parties. Though an appellate court may judge
            whether a district court exercised its discretion (and
            whether it abused that discretion), it cannot exercise

                                       6
           the district court’s discretion.


396 F.3d at 1143.

     We are left with the same situation as in Labastida-Segura.

Accordingly, as in Labastida-Segura, we hold that the error was not

harmless, and remand for re-sentencing.

     The defendant also argues that, under Booker, the nature of his prior

conviction used to enhance his sentence must be either admitted or proven

beyond a reasonable doubt. This contention is foreclosed by Almendarez-

Torres v. United States, 523 U.S. 224 (1998), and United States v. Moore,

401 F.3d 1220 (10th Cir. 2005) (“[W]e are bound by existing precedent to

hold that the Almendarez-Torres exception to the rule announced in

Apprendi and extended to the Guidelines in Booker remains good law.”).

     For the foregoing reasons, we VACATE the defendant’s sentence and

REMAND the case to the district court for resentencing in accordance with

Booker.



                                    Entered for the Court
                                    PER CURIAM




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