                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          July 27, 2005

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 03-2186
 v.                                             (D.C. No. CR-03-358-MV)
                                                      (New Mexico)
 MARCELINO NAJERA-MORALES,

          Defendant-Appellant.




                       ON REMAND FROM THE
                   UNITED STATES SUPREME COURT
                       ORDER AND JUDGMENT *


Before SEYMOUR, HOLLOWAY, and MURPHY, Circuit Judges.



      Marcelino Najera-Morales was convicted of illegal reentry following

deportation, in violation of 8 U.S.C. §§ 1326(a)(1) and (a)(2). He appealed the

district court’s refusal to grant a downward adjustment based on acceptance of

responsibility, pursuant to U.S.S.G. § 3E1.1, among other issues. We affirmed.


      *
       This order and judgment is not binding precedent, except under the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.
United States v. Najera-Morales, 2004 WL 2445639 (10th Cir. Nov. 2, 2004)

(unpublished disposition). He filed a petition for writ of certiorari to the Supreme

Court seeking resentencing under United States v. Booker, 125 S. Ct. 738 (2005).

The Supreme Court granted the writ, vacated the judgment, and remanded the

case to us for further consideration in light of Booker. Najera-Morales v. United

States, 125 S. Ct. 1997 (2005). We asked the parties to file supplemental briefs

addressing the impact of Booker on this case. We conclude the district court

committed plain error in sentencing Mr. Najera-Morales, and we vacate his

sentence and remand for resentencing in accordance with Booker.

      Background facts and the procedural history of Mr. Najera-Morales’ case

are set forth in our previous disposition in this case. We state here only the facts

and history now relevant to the sentencing issue before us. Mr. Najera-Morales

was convicted after a jury trial of illegal reentry after deportation. The

presentence report determined his adjusted offense level was 24, his criminal

history was category III, and his guideline range was 63 to 78 months. It

recommended that he not receive a two-level downward adjustment for

acceptance of responsibility under sentencing guideline § 3E1.1. It noted he had

gone to trial and his case was not one of those rare situations that permit the

adjustment in such a circumstance, such as to “preserve issues that do not relate

to factual guilt” by challenging the constitutionality of a statute or the


                                          -2-
applicability of a statute to a defendant’s conduct. U.S.S.G. § 3E1.1, cmt. n.2.

      Mr. Najera-Morales objected to this recommendation at sentencing. At the

time of his arrest, he had admitted he entered the country illegally from Mexico

after deportation and without applying for permission. In addition, he presented

evidence that prior to his arrest he had taken significant steps to become a citizen,

which he believed legally justified his presence in the country. Thus, he had

applied to the Immigration and Naturalization Services (INS) 1 for permanent

residency in early 2001, based on his marriage to a United States citizen, and he

received a temporary work authorization. In connection with this process, the

INS accepted from him nonrefundable fees totaling over $1400 and met with him

over twenty times. It was not until February 2003 that the INS informed him his

application was denied because he had previously been deported, and then

arrested him.

      The district court overruled Mr. Najera-Morales’ objection. It stated that

although it believed he had actually accepted responsibility, his circumstances did

not fall within the requirement of § 3E1.1. The court sentenced Mr. Najera-

Morales at the bottom of the guideline range to 63 months. On appeal, we



      1
       On March 1, 2003, the former INS was abolished and its functions divided
among agencies within the newly-formed Department of Homeland Security. We
continue to refer to the agency as “INS” in this decision.


                                         -3-
affirmed the sentence because we similarly concluded that his circumstances were

not congruent with the guidelines’ formulation of acceptance of responsibility.

      Mr. Najera-Morales did not challenge his sentence below on the ground

that it violated his Sixth Amendment right to a jury trial. We therefore review his

sentence for plain error. United States v. Gonzalez-Huerta, 403 F.3d 727, 731-32

(10th Cir. 2005) (en banc). 2 To establish plain error, Mr. Najera-Morales must

show that 1) the district court committed error, 2) the error was plain, and 3) it

affected his substantial rights. United States v. Cotton, 535 U.S. 625, 631 (2002);

Gonzalez-Huerta, 403 F.3d at 732. If the error meets these conditions, we may

exercise our discretion to correct the error if it would seriously affect the fairness,

integrity, or public reputation of judicial proceedings. Cotton, 535 U.S. at 632.

      The district court committed error in sentencing Mr. Najera-Morales

because it treated the guidelines as mandatory, thereby violating the remedial

holding of Booker. See United States v. Trujillo-Terrazas, 405 F.3d 814, 818

(10th Cir. 2005). Moreover, the district court’s error is now “plain” or “obvious.”

Johnson v. United States, 520 U.S. 461, 468 (1997) (holding that “where the law

at the time of trial [or sentencing] was settled and clearly contrary to the law at


      2
        In order to preserve the issue for Supreme Court review, Mr. Najera-
Morales argues in his brief that we should adopt a less stringent plain error
reversal standard than the one we employed in United States v. Gonzalez-Huerta,
403 F.3d 727 (10th Cir. 2005) (en banc). Needless to say, this panel has no power
to do that.

                                          -4-
the time of appeal--it is enough that an error be ‘plain’ at the time of appellate

consideration”).

      In order to demonstrate that the mandatory application of the guidelines

affected substantial rights, a defendant must show a “reasonable probability” that

the defects in his sentencing altered the result of the proceedings. Trujillo-

Terrazas, 405 F.3d at 819 (quoting United States v. Dominguez-Beritez, 542 U.S.

74 (2004)). Mr. Najera-Morales can meet this standard “by demonstrating a

reasonable probability that had the district court applied a post-Booker advisory

sentencing framework, he would have received a lower sentence.” Id. In this

case, the district court referred to Mr. Najera-Morales’ dealings with the INS in

trying to obtain permanent residency, and stated the following about the

acceptance of responsibility adjustment before it pronounced his sentence:

      I can . . . see that his act isn’t an act of an obstinate man. He just–he has–a
      man with fifth grade education. It took him a long time to raise the money
      [in fees to the INS]. He kept paying it . . . . This is unfortunate. This is an
      awful lot of time, too. But I can–I understand why he wanted to contest–all
      he really wanted was an opportunity to explain why he thought it was legal
      and lawful for him to remain in the United States. I think the legal
      intricacies is something we can’t expect him to understand . . . .

      I looked at whether it was an argument as to the application of the statute to
      him, and I don’t see that that fits, either, because of the fact that the issue
      is his confusion about being permitted to remain in the United States, and
      that’s not what he was charged with. The charge here is that he again
      illegally reentered . . . .

      He knew he reentered illegally when he did so. I think he thought
      somehow that was salvaged, or cured by the fact that he was getting these

                                          -5-
      legal permits. I’m sorry that the two of you [defense counsel and
      defendant] were unable to reach an understanding, and that he was unable
      to understand how this works, but as a result, then, I don’t believe that it
      would be appropriate or lawful for him to get acceptance of responsibility .

      If I could award it, I would, because I think he accepts his responsibility,
      but given the confines of the acceptance of responsibility case law in the
      Tenth Circuit, it has to be challenging the Constitutionality of the statute or
      the applicability of a particular statute to his case. I’ve explained why I
      don’t believe that that is appropriate.

Rec., vol. 5, at 17-19 (emphasis added).

      The district court clearly expressed sympathy for Mr. Najera-Morales,

concern over the length of his sentence, and dissatisfaction with the mandatory

nature of the guidelines that precluded it from awarding him an adjustment for

acceptance of responsibility. As a result, the district court would likely have

sentenced Mr. Najera-Morales to a lesser sentence in an advisory guidelines

system. See Trujillo-Terrazas, 405 F.3d at 819-20. If the court had granted him

the two-level downward adjustment for acceptance of responsibility, his guideline

range would have been 51 to 63 months. He likely would have been sentenced to

51 months imprisonment, or more than one year less than his current sentence of

63 months. We decline to deem a one-year difference in a sentence, which

constitutes a twenty-five percent increase in the length of imprisonment in this

case, insubstantial. Indeed, the government concedes that the district court’s

error affected Mr. Najera-Morales’ substantial rights because the court was

sympathetic to his circumstances, it would probably have granted him a decrease

                                           -6-
in sentence, and the error therefore resulted in a one-year increase in his sentence.

Aple. Br. at 8-9.

       We possess discretion to correct plain error when it affects the integrity,

fairness, or public reputation of judicial proceedings. Johnson, 520 U.S. at 467;

Trujillo-Terrazas, 405 F.3d at 820-21. This standard is an “especially

demanding” one, requiring a defendant to show an error is “particularly egregious

and that failure to correct it would result in a miscarriage of justice.” United

States v. Dowlin, 408 F.3d 647, 671 (10th Cir. 2005). Factors that support an

exercise of our discretion include: a sentence increased substantially based on a

Booker error; a showing that the district court likely would impose a significantly

lighter sentence on remand; a substantial lack of evidence to support the entire

guidelines sentence imposed; a showing that objective consideration of the 18

U.S.C. § 3553(a) factors warrants a departure; or other evidence peculiar to the

defendant that demonstrates a complete breakdown in the sentencing process. See

id. at 671.

       As discussed above, Mr. Najera-Morales’ sentence was substantially

increased based on a Booker error and the record shows the district court likely

would impose a significantly lighter sentence on remand. Moreover, the district

court believed Mr. Najera-Morales had actually accepted responsibility within the

spirit, although not the letter, of § 3E1.1. The purposes of § 3E1.1 include


                                          -7-
promoting society’s interests in “the reduction of crime . . . and the increased

potential for rehabilitation among those who feel and show true remorse for their

anti-social conduct.” United States v. Henry, 883 F.2d 1010, 1011-12 (11th Cir.

1989) (citation omitted). In stating that it believed Mr. Najera-Morales accepted

responsibility, the district court effectively found that Mr. Najera-Morales

exhibited sincerity, remorsefulness, and rehabilitation potential equivalent to

those exhibited by other defendants who are entitled to the acceptance of

responsibility adjustment under § 3E1.1.

      The district court’s conclusion has strong support in the record. When Mr.

Najera-Morales applied for permanent residency with the INS, he gave the agency

his correct name and acknowledged his true place of birth and the fact that he was

a Mexican citizen. He also completed all the paperwork and provided all the

documents the INS requested, including proof of his marriage, medical records,

and fingerprints. When he was arrested, he admitted he had been deported, he

had reentered the country illegally, and he had not submitted an application for

permission to reenter. At trial, he only contested whether the actions of the INS

established that the Attorney General had in effect consented to his reentry, and

he never claimed that the Attorney General actually informed him he could

reenter. The district court found that Mr. Najera-Morales only went to trial

because he was understandably confused about the immigration laws, especially


                                         -8-
in light of his minimal education and the INS’s seemingly welcoming response to

his application for permanent residency. Given the very unusual circumstances of

Mr. Najera-Morales’ case, the district court’s finding that he deserved an

acceptance of responsibility adjustment is entitled to great deference. Trujillo-

Terrazas, 405 F.3d at 821. The court was in a unique position to evaluate Mr.

Najera-Morales’ acceptance of responsibility. See § 3E1.1 cmt. n.5. It was also

best situated to assess his credibility and character.

      Objective consideration of the § 3553(a) factors also support the conclusion

that Mr. Najera-Morales’ circumstances warrant a downward adjustment. The

district court’s findings at sentencing implicate the § 3553(a) factors, including:

“characteristics of the defendant,” (a)(1); the need “to protect the public from

further crimes of the defendant,” (a)(2)(c); and the “need to avoid unwarranted

sentencing disparities among defendants,” (a)(6). The court recognized that Mr.

Najera-Morales possesses a fifth-grade education and thus had difficulty

understanding the immigration laws. Rec., vol. 5, at 17, 23. At sentencing, the

court explained the sentence and its reasoning to him in Spanish:

      I understand your explanation. It is a shame that we cannot reduce your
      time, given your explanation, but it is not possible for me to reduce your
      time. I understand that you must have been confused because of the actions
      of the Immigration department. They gave you permission to work,
      accepted your money, gave you time to come in . . . . It is very
      complicated. Many times, people get nervous in court, and you have not
      had the preparation that many of us have had with regard to going to school
      for a long time. And these are complicated things, and I don’t blame you

                                          -9-
      for not having understood before, but understand it now.

Id. at 20-21, 23. In addition, the court recognized Mr. Najera-Morales’ family

circumstances imposed special hardship on him because he is married to a United

States citizen. It advised Mr. Najera-Morales that because he was going to be

deported after he served his sentence, he would have to seek to build a new life in

Mexico with his wife and family.

      Moreover, because the court found that Mr. Najera-Morales had accepted

responsibility, was remorseful, and had rehabilitation potential, factor §

3553(a)(2)(c) is satisfied because of a lack of any showing of need to protect the

public from future crimes. When Mr. Najera-Morales informed the court that he

accepted responsibility, he further expressed to the court his desire to be sent

back to Mexico as soon as possible. After receiving his sentence, Mr. Najera-

Morales stated that had he not believed he could make his status legal in the

United States, he would not have reentered the country. The dialogue between

the court and Mr. Najera-Morales shows that he understands he cannot reenter the

United States in the future and that he is not likely to endeavor to do so.

      Finally, the very unusual circumstances in Mr. Najera-Morales’ case

implicate § 3553(a)(6), which seeks to achieve uniform sentencing of defendants

with similar conduct. Trujillo-Terrazas, 405 F.3d at 820. Given the district

court’s factual finding that he effectively accepted responsibility, his punishment


                                         -10-
is not in accord with his conduct. His acceptance of responsibility for his illegal

status in the country was within the spirit of § 3E1.1, but he was not able to

receive consideration under the guidelines commensurate with his candor,

cooperation with authorities, and good faith efforts to become legal. Moreover,

Mr. Najera-Morales’ actions in seeking to “cure” his illegal reentry by openly

approaching the INS, paying the not insubstantial agency fees, and persistently

remaining in contact with the authorities, is far from “run of the mill” among

defendants faced with similar immigration concerns, and merits special

consideration. See id. at 819, 820. In sum, Mr. Najera-Morales presents a

“compelling case” for departure under § 3553(a), and to allow the “mismatch

between the sentence suggested by the principled application of the post-Booker

sentencing framework and the actual sentence given to him would call into

question the fairness, integrity, and public reputation of judicial proceedings.” Id.

at 821.

      For the foregoing reasons, we VACATE the judgment of the district court

and REMAND for resentencing. We reinstate our prior disposition , United States

v. Najera-Morales, 2004 WL 2445639 (10th Cir. Nov. 2, 2004), to the extent that




                                         -11-
it does not conflict with this opinion.


                                          ENTERED FOR THE COURT


                                          Stephanie K. Seymour
                                          Circuit Judge




                                           -12-
                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                 UNITED STATES COURT OF APPEALS                              NOV 2 2004

                                 TENTH CIRCUIT                        PATRICK FISHER
                                                                                  Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 03-2186
 v.                                               (D.C. No. CR-03-358-MV)
                                                        (New Mexico)
 MARCELINO NAJERA-MORALES,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, HOLLOWAY, and MURPHY, Circuit Judges.



      Marcelino Najera-Morales was convicted of being found in the United

States subsequent to illegal reentry after deportation, in violation of 8 U.S.C. §§

1326(a)(1) and (a)(2). He appeals the district court’s denial of a mistrial for

erroneous references to his criminal record and its refusal to grant him a

downward adjustment for acceptance of responsibility. We affirm.

      An undocumented person who has been previously deported may not

      *
       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.
reenter the country “unless . . . the Attorney General has expressly consented to

such alien’s reapplying for admission.” 8 U.S.C. § 1326(a)(2). An aggravated

felony provision in the statute, section (b)(2), authorizes an increase in sentence

but is not an element of the crime. Almendarez-Torres v. United States, 523 U.S.

224, 235 (1998); United States v. Martinez-Villalva, 232 F.3d 1329, 1331-32

(10th Cir. 2000). Nevertheless, the district court denied Mr. Najera-Morales’

motion in limine to exclude references to his criminal record at trial on the

erroneous belief that the charged crime required proof of an aggravated felony.

       During jury selection and at trial, the prosecutor and the district court made

several references to Mr. Najera-Morales’ criminal record, including prior

felonies of kidnapping and reentry after deportation, and the court admitted an

exhibit regarding a prior criminal conviction. The court subsequently recognized

its error but denied Mr. Najera-Morales’ motion for a mistrial, concluding that the

references to his criminal record could be corrected by appropriate instructions to

the jury. 1

       We review the denial of a motion for mistrial for abuse of discretion.

United States v. McKissick, 204 F.3d 1282, 1299 (10th Cir. 2000) (citation



       The court’s instructions to the jury cautioned that the indictment and
       1

lawyers’ statements are not evidence, did not include the prior conviction for
aggravated felony as an element, and advised that the exhibit regarding the
previous conviction had been withdrawn as irrelevant to any element of the crime.


                                          -2-
omitted). In determining whether the court abused its discretion, we assess what

effect any error “had or reasonably may be taken to have had upon the jury’s

decision . . . [and] whether it had substantial influence.” United States v.

Caballero, 277 F.3d 1235, 1244 (10th Cir. 2002) (quoting Kotteakos v. United

States, 328 U.S. 750, 764-65 (1946)). Mr. Najera-Morales contends the

references to his prior convictions were inherently prejudicial due to their serious

nature and similarity to the present charge. The government rightly concedes it

should not have introduced Mr. Najera-Morales’ criminal history, see Martinez-

Villalva, 232 F.3d at 1331-32, but asserts the mistake was harmless because the

evidence at trial was overwhelming.

      The inculpatory evidence presented to the jury was strong. Mr. Najera-

Morales had admitted to arresting officers that he illegally entered the country

after being deported. At trial, he contended there was reasonable doubt about

whether the attorney general had consented to his reentry, arguing in part that the

INS’s subsequent conduct indicated he had de facto permission to be in the

United States. He based this assertion on the fact that he had applied for

permanent residency with the INS in early 2001 and the INS thereafter granted

him temporary work authorization, took from him nonrefundable fees totaling

over $1400, and met with him over twenty times. It was not until February 2003

that the INS informed him his application was denied because he had been


                                         -3-
previously deported, and then arrested him.

      Mr. Najera-Morales’ theory has no support in the law. The statute itself

requires “express” permission. 8 U.S.C. § 1326 (a)(2)(A). In holding this law

does not require specific intent to reenter illegally, we have recognized that

“Congress placed the burden of correctly obtaining permission from the Attorney

General and reentering the United States legally on the alien.” United States v.

Gutierez-Gonzalez, 184 F.3d 1160, 1165 (10th Cir. 1999). Given the lack of

viability of a theory of implied permission, and in view of the record evidence of

his illegal reentry, we are satisfied the jury was not substantially influenced by the

error. See United States v. Anaya, 117 F.3d 447 (10th Cir. 1997) (where evidence

on a § 1326 charge was overwhelming, erroneous admission of prior felony

conviction not reversible error). The district court did not abuse its discretion in

denying the motion for mistrial.

      Prior to sentencing, Mr. Najera-Morales objected to the presentence

report’s conclusion that he did not merit a two-level downward adjustment for

acceptance of responsibility under sentencing guideline § 3E1.1, pointing out he

had admitted when arrested to entering illegally after deportation and to doing so

without applying for permission to reenter the country. The government

countered that Mr. Najera-Morales went to trial to negate his factual guilt and that

he argued the government failed in its burden to prove he did not have permission


                                          -4-
to enter the country.

      The guideline makes clear that a defendant who goes to trial may only

qualify for the adjustment in “rare situations,” such as attempting to “preserve

issues that do not relate to factual guilt,” like a challenge to the constitutionality

of a statute or to the applicability of the statute to a defendant’s conduct.

U.S.S.G. § 3E1.1, cmt. n.2. The district court overruled Mr. Najera-Morales’

objection, explaining:

      I looked at whether it was an argument as to the application of the
      statute to him, and I don’t see that that fits, either, because of the
      fact that the issue is his confusion about being permitted to remain in
      the United States, and that’s not what he was charged with. [2] The
      charge here is that he again illegally reentered.

      He knew he reentered illegally when he did so. I think he thought
      that somehow that was salvaged, or cured by the fact that he was
      getting these legal permits. I’m sorry that . . . he was unable to
      understand how this works, but as a result, then, I don’t believe that
      it would be appropriate or lawful for him to get acceptance of
      responsibility.

      If I could award it, I would, because I think he accepts his
      responsibility, but given the confines of the acceptance of
      responsibility case law in the Tenth Circuit, it has to be challenging
      the Constitutionality of the statute or the applicability of a particular
      statute to the case.

      I’ve explained why I don’t believe that that is appropriate.


      2
        In noting that he was not charged with illegally “remaining” in the country,
the district court appeared to be distinguishing the unlawful reentry of removed
aliens from a situation where an individual has overstayed his authorization to be
in the country.

                                           -5-
Rec., vol. 5, at 18-19.

      We review a district court’s interpretation of the sentencing guidelines de

novo and its factual findings for clear error. United States v. Bailey, 327 F.3d

1131, 1147 (10th Cir. 2003) (quotation omitted). Because the district court is in

an unique position to evaluate a defendant’s acceptance of responsibility, its

determination is entitled to great deference. U.S.S.G. § 3E1.1, cmt. n.5.

      Mr. Najera-Morales contends the court incorrectly understood its authority

to depart, asserting that he did in fact challenge the applicability of the statute by

contesting the legal interpretation of whether the facts in his case could have

implied permission. He highlights that the court actually found he had accepted

responsibility for the unlawful reentry. He also claims the adjustment is

supported by the fact that he had a sincere, albeit erroneous, view of the law. We

are not persuaded.

      This case is not like United States v. Gauvin, 173 F.3d 798, 806 (10th Cir.

1999), where we upheld an acceptance of responsibility adjustment for a

defendant who went to trial to challenge whether his factual state of mind legally

rose to the required level of intent. Mr. Najera-Morales’ concern is with the

court’s application of the guidelines to the facts of his case, not its legal

interpretations. He clearly contested his factual guilt at trial by arguing the

government failed to prove he reentered the country without permission.


                                           -6-
Although the court found he had “accepted responsibility,” it held this acceptance

did not meet the standard for an acceptance of responsibility as defined by the

guidelines. It concluded that his theory of subsequent “de facto” permission was

not relevant to his conviction because the illegal reentry had already occurred.

His theory could not, therefore, be the basis for a challenge to the statute’s

applicability to him. Even if misapprehension of the law were a ground for the

acceptance of responsibility adjustment, the court found Mr. Najera-Morales was

not confused about the law under which he was convicted because he knew it was

illegal for him to enter the country without permission. 3 We do not believe the

court misunderstood its authority to grant an acceptance of responsibility

reduction and we decline to overturn its decision to deny the reduction.

      We AFFIRM.


                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Circuit Judge




      3
       This case is therefore unlike those cited by Mr. Najera-Morales, where the
defendants did not understand the legal consequences of their actions, see United
States v. Miller, 22 F.3d 1075, 1081 (11th Cir. 1994); United States v. Schultz,
917 F. Supp. 1343, 1353 (N.D. Iowa 1996), or where the defendant challenged the
government’s legal theory that venue was proper, see United States v. Fell, 78
F.3d 168, 171-72 (5th Cir. 1996).

                                          -7-
