                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS                         March 27, 2006

                                 TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                         Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 03-3276
 v.                                          (D.C. No. 02-CR-40127-01-SAC)
                                                        (D. Kan.)
 ALFREDO ROMAN-ROMAN,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before MURPHY, SEYMOUR, and PORFILIO, Circuit Judges.



      Alfredo Roman-Roman pled guilty to conspiracy drug charges in violation

of 21 U.S.C. § 846, 841(b)(1)(A) and 18 U.S.C. § 2. On direct appeal, we

affirmed the district court’s denial of Mr. Roman-Roman’s motion to suppress

evidence obtained from a search of his rented vehicle after a traffic stop. United

States v. Roman-Roman, 116 Fed. Appx. 994 (10th Cir. Dec. 6, 2004). The


      *
       This order and judgment is not binding precedent, except under the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.
Supreme Court summarily vacated the judgment in Mr. Roman-Roman’s case and

remanded for further consideration of his sentence in light of United States v.

Booker, 543 U.S. 220 (2005). See Roman-Roman v. United States, 126 S. Ct. 410

(2005). Having reviewed the parties’ supplemental briefs, we reinstate our prior

order and judgment and affirm Mr. Roman-Roman’s sentence.

      Mr. Roman-Roman pled guilty to “conspiracy to possess with intent to

distribute in excess of 30 kilograms of a substance or mixture of substances

containing a detectable amount of methamphetamine.” Aplt. App. at 164. He

did, however, preserve his right to appeal the suppression issues in his case. The

plea agreement contained a narrative agreed to by both parties detailing the facts

surrounding Mr. Roman-Roman’s arrest and eventual guilty plea. Id. at 165. The

narrative stated that Mr. Roman-Roman was stopped by the police while riding as

a passenger in a rented van, after which, he and the driver consented to a search

of the vehicle. The search resulted in the discovery of sixty-nine pounds

of methamphetamine. Id. at 166.

      After Mr. Roman-Roman entered his plea, a pre-sentence report (PSR) was

prepared by the United States Probation Office. That report fully detailed the

facts surrounding Mr. Roman-Roman’s offense, including that he was found in

possession of 30.7 kilograms of methamphetamine. Rec., vol. II at 6-8. The PSR

recommended a base offense level of 38. The report also recommended that three


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levels be subtracted for acceptance of responsibility under U.S.S.G. § 3E1.1, and

an additional two levels for application of the safety valve provision under

U.S.S.G. § 5C1.2. Rec., vol. II at 9-10. These calculations resulted in a total

offense level of 33, which coupled with Mr. Roman-Roman’s criminal history

category of I, yielded a sentencing range of 135-168 months. Id. at 15. Mr.

Roman-Roman did not object to the PSR. Nor did he object when the district

court sentenced him to 135 months. He did not appeal his sentence, challenging

only the district court’s denial of his motion to suppress the evidence found in his

vehicle.

      In Booker, the Supreme Court ruled 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 or a jury verdict must be

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

Booker, 543 U.S. at 244. The ruling in Booker applies to all cases on direct

review. Id. at 268. Where, as here, no Booker errors were raised below, we

review for plain error. See United States v. Gonzalez-Huerta, 403 F.3d 727, 732

(10th Cir. 2005). “Plain error occurs when there is (1) error, (2) that is plain,

which (3) affects substantial rights, and which (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. (quoting United

States v. Burbage, 365 F.3d 1174, 1180 (10th Cir. 2004)). Mr. Roman-Roman is


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unable to satisfy this standard.

      Our court has identified two different types of sentencing errors under

Booker. Constitutional Booker error arises where the court bases a sentence on

judge-found facts. Non-constitutional Booker error occurs where the court

applies the guidelines in a mandatory fashion. See id. at 731-32. Constitutional

Booker error did not occur in this case because the district court, in sentencing

Mr. Roman-Roman, did not rely on judge-found facts to increase his sentence.

Instead, his sentence was based entirely on his admission that he possessed more

than thirty kilograms of a substance containing methamphetamine. His guilty plea

detailed this fact, and he raised no objections to the PSR reciting the same.

      This case does present non-constitutional Booker error because the district

court applied the guidelines in a mandatory fashion when it sentenced Mr.

Roman-Roman. Where non-constitutional Booker error is involved, the first two

prongs of the plain error analysis are met. See United States v. Clifton, 406 F.3d

1173, 1181 (10th Cir. 2005). Even if Mr. Roman-Roman could satisfy the third

prong of the plain error test, however, we are not convinced he satisfies the final

prong. See Gonzalez-Huerta, 403 F.3d at 736 (court need not decide third prong

of plain error test where defendant cannot satisfy final portion of test). Under the

fourth prong of plain error review, we will exercise our discretion to notice an

error only if “it seriously affects the fairness, integrity, or public reputation of


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judicial proceedings.” Id. The error must be both particularly egregious and

result in a miscarriage of justice if we decline to notice it. Id.

      Mr. Roman-Roman does not make any substantial argument as to why the

district court’s error in his case satisfies this high standard. At most, he asserts

the conclusory allegation that because he received a reduction under the safety

valve provision, mitigating factors existed in his case which could have resulted

in a lower sentence, therefore casting the reputation of the district court

proceedings in doubt. He fails, however, to point to anything in the record to

indicate what specific factors would result in the district court imposing a lower

sentence on remand.

      In short, this is a “run of the mill case with non-constitutional Booker

error.” United States v. Trujillo-Terrazas, 405 F.3d 814, 820 (10th Cir. 2005).

Mr. Roman-Roman pled guilty, he received a sentence at the low end of the

guideline range which was calculated without any Sixth Amendment violation,

and “there is no reason to suppose,” id., nor has Mr. Roman-Roman presented

sufficient argument to cause us to doubt, that his “sentence is anything but fair

and reasonable.” Id. Mr. Roman-Roman has thus failed to show how the instant

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

proceedings.” Gonzales-Huerta, 403 F.3d at 736. Accordingly, he cannot satisfy

the plain error test, and we must affirm his sentence.


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      We REINSTATE our prior order and judgment affirming Mr. Roman-

Roman’s conviction and, after consideration in light of Booker, we AFFIRM his

sentence.


                                            ENTERED FOR THE COURT


                                            Stephanie K. Seymour
                                            Circuit Judge




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