                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                      December 23, 2005
                                   TENTH CIRCUIT
                                                                        Clerk of Court


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 04-2162
v.
                                                 (District of New Mexico)
                                                 (D.C. No. CR-04-99 BB)
ELIAZAR GONZALEZ-ANDAZOLA,
also known as Elizar Gonzales,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before EBEL, McWILLIAMS, and MURPHY, Circuit Judges.


1.    INTRODUCTION

      Defendant-appellant Eliazar Gonzalez-Andazola pleaded guilty to illegally

reentering the United States after having been previously deported following a

conviction for an aggravated felony. He was sentenced to seventy months’



      *
       This order and judgment is not binding precedent, except under the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.
imprisonment. On appeal Gonzalez-Andazola argues, for the first time, that his

sentence violates his Sixth Amendment rights under Blakely v. Washington, 124

S. Ct. 2531 (2004), and that the federal Sentencing Guidelines are

unconstitutional. This court exercises jurisdiction pursuant to 18 U.S.C.

§ 3742(a) and 28 U.S.C. § 1291. Because his sentence does not violate his Sixth

Amendment rights and because the district court’s erroneous application of the

Sentencing Guidelines does not satisfy the requirements of plain-error review,

this court affirms Gonzalez-Andazola’s sentence.

2.    BACKGROUND

      Gonzalez-Andazola was arrested on October 26, 2003, by a United States

Border Patrol Agent. The government filed an indictment charging Gonzalez-

Andazola with being found in the United States after having been previously

deported following a conviction for an aggravated felony, in violation of 8 U.S.C.

§ 1326(a)(1), (2), and (b)(2). The underlying felony named in the indictment was

aggravated battery with great bodily harm. On March 8, 2004, Gonzalez-

Andazola entered a guilty plea without a plea agreement.

      Pursuant to United States Sentencing Guidelines (“U.S.S.G.”) § 2L1.2(a),

the base offense level for illegal reentry is eight. Based on the underlying

conviction for aggravated battery, which is considered a crime of violence, a

sixteen-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) was applied,


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resulting in an adjusted offense level of twenty-four. The offense level was

reduced three levels for acceptance of responsibility producing a final offense

level of twenty-one. Based on this offense level and Gonzalez-Andazola’s

criminal history category V status, the applicable Guidelines range was seventy to

eighty-seven months. The district court sentenced Gonzalez-Andazola to seventy

months’ imprisonment, the low end of the Guidelines range.

3.    DISCUSSION

      Gonzalez-Andazola now argues that his sentence must be reversed because

his sentence was based on an alleged prior conviction that was not found by a jury

or admitted by Gonzalez-Andazola, in violation of his Sixth Amendment rights

under Blakely v. Washington, 124 S. Ct. 2531 (2004). He further asserts that the

federal Sentencing Guidelines are unconstitutional and it was therefore reversible

error for the district court to sentence him under a mandatory sentencing scheme.

      While Gonzalez-Andazola’s appeal was pending, the Supreme Court

decided United States v. Booker, 125 S. Ct. 738 (2005). In Booker, the Supreme

Court extended the holding of Blakely to apply to the federal Sentencing

Guidelines and reiterated that the Sixth Amendment requires that “[a]ny fact

(other than a prior conviction) which is necessary to support a sentence exceeding

the maximum authorized by the facts established by a plea of guilty must be

admitted by the defendant or proved to a jury beyond a reasonable doubt.” Id. at


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756. Booker makes clear that a court imposing a sentence by application of the

mandatory Sentencing Guidelines could commit two types of error: constitutional

error and non-constitutional error. United States v. Gonzalez-Huerta, 403 F.3d

727, 731-32 (10th Cir. 2005) (en banc). Constitutional Booker error results from

a district court “relying upon judge-found facts, other than those of prior

convictions, to enhance a defendant’s sentence mandatorily.” Id. at 731. Non-

constitutional error results from a district court’s mandatory application of the

Guidelines in contravention of the remedial portion of the Supreme Court’s

decision in Booker which renders the Sentencing Guidelines advisory only.

Booker, 125 S. Ct. at 764-65.

      Because Gonzalez-Andazola raises his arguments for the first time on

appeal, we review his sentence for plain error. See United States v. Sierra-

Castillo, 405 F.3d 932, 941 (10th Cir. 2005) (detailing four-part plain error test).

Gonzalez-Andazola’s Sixth Amendment claim is meritless because the Sixth

Amendment does not require the fact of a prior conviction to be admitted by a

defendant or found by a jury. See Booker, 125 S. Ct. at 756 (2005); United States

v. Moore, 401 F.3d 1220, 1224 (10th Cir. 2005). 1 Thus, the district court did not

commit constitutional error when it enhanced Gonzalez-Andazola’s sentence for


      1
       Gonzalez-Andazola’s Sixth Amendment claim also fails because he
specifically admitted the fact of his prior conviction. See United States v. Booker,
125 S. Ct. 738, 756 (2005).

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illegal reentry based upon the fact of a prior conviction. The district court did,

however, commit non-constitutional Booker error by applying the Sentencing

Guidelines in a mandatory fashion. Gonzalez-Huerta, 403 F.3d at 731-32.

Mandatory application of the Guidelines is an error that is plain, thus satisfying

the first two prongs of the plain-error test. Id. at 732. Irrespective of whether

Gonzalez-Andazola can show that his substantial rights were affected, he is not

entitled to relief because he cannot demonstrate that the district court’s error

seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Id. at 736-37. “[S]entencing error meets the fourth prong of

plain-error review only in those rare cases in which core notions of justice are

offended.” United States v. Lawrence, 405 F.3d 888, 906 (10th Cir.2005)

(quotation omitted). In one brief paragraph Gonzalez-Andazola asserts in

conclusory fashion that the district court’s error satisfies this standard. This

statement is not sufficient to satisfy Gonzalez-Andazola’s burden. Gonzalez-

Huerta, 403 F.3d at 737. Furthermore, Gonzalez-Andazola received a sentence

within the applicable Guidelines range and there is nothing in the record to

suggest that the district court’s mandatory application of the Guidelines was

“particularly egregious or a miscarriage of justice.” See id. at 738-39.

Furthermore, a review of the transcript of the sentencing hearing reveals no

likelihood that the district court would impose a lower sentence if this matter


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were remanded for resentencing. Lawrence, 405 F.3d at 907 (“Whether the

district court would simply reimpose the same sentence on remand, or whether

instead the sentence would likely change to a significant degree if [the case] were

returned to the district court for discretionary resentencing, is one factor to

consider in determining whether the defendant can satisfy the fourth plain-error

prong.” (quotation omitted)). Instead, after noting Gonzalez-Andazola’s

extensive criminal record and history of alcohol abuse, the district court noted the

possibility that Gonzalez-Andazola could make his time in prison productive and

meaningful by overcoming his alcoholism and remaining connected to his family.

Because Gonzalez-Andazola is unable to satisfy the fourth prong of plain-error

review, he is not entitled to relief.

IV.    CONCLUSION

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

district court.

                                        ENTERED FOR THE COURT



                                        Michael R. Murphy
                                        Circuit Judge




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