                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       August 9, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                     No. 05-2109
          v.                                           (D. New M exico)
 M O N CERRA T M EN D O ZA -                      (D.C. No. CR-04-1756 RB)
 BORUNDA,

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before KELLY, A ND ER SO N, and HENRY, Circuit Judges.


      M oncerrat M endoza-Borunda appeals the five-year mandatory minimum

sentence imposed following his guilty plea to conspiracy to distribute more than

100 kilograms of marijuana and possession with intent to distribute less than 50

kilogram s of marijuana. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm M r. M endoza-Borunda’s sentence. However, because the district court

entered a judgment of conviction and imposed a concurrent sentence on an

uncharged count, we vacate that conviction as well as the concurrent sentence and


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
remand with instructions for the district court to enter an amended judgment.

                                          I.

      On June 2, 2004, United States Border Patrol Agents in Southern New

M exico saw a white mini-van pull to the side of Interstate 10 with its hazards

flashing. The agents approached the vehicle and observed M r. M endoza-Borunda

and four other male occupants, one of whom was placing a large burlap bag into

the mini-van’s cargo area. As the agents drew closer, three of the men attempted

to flee on foot, but were subsequently apprehended. M r. M endoza-Borunda and

another man were taken into custody at the vehicle.

      The agents recovered two bundles of marijuana from the mini-van. They

discovered four more bundles of marijuana underneath a nearby bush along with

tracks matching the shoes w orn by the three would-be absconders. The six

bundles contained a total of 112.4 kilograms of marijuana. During a post-arrest

interview , M r. M endoza-Borunda admitted that he and one of the other men were

going to be paid $2,000 each to transport the marijuana to Tucson, Arizona.

      On September 3, 2004, M r. M endoza-Borunda and the four other men from

the mini-van were named in the same three-count indictment. M r. M endoza-

Borunda was charged in only two of the three counts. Count I charged him with

conspiracy to possess with intent to distribute in excess of 100 kilograms of

marijuana, in violation of 21 U.S.C. § 846. Count III charged him with

possession with intent to distribute less than 50 kilograms of marijuana, in

                                         -2-
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). He pleaded guilty to both

counts without the benefit of a plea agreement.

      The United States Probation Office prepared a presentence investigation

report (“PSR”), which recommended a sentence based on the United States

Sentencing Guidelines (“USSG” or “Guidelines”). The PSR found a total offense

level of twenty-one and assessed M r. M endoza-Borunda two total criminal history

points — one for a 2000 DW I conviction and one for a 2003 DW I conviction.

These two criminal history points placed M r. M endoza-Borunda in criminal

history category II.

      Ordinarily, a total offense level of twenty-one and a criminal history

category of II would have resulted in a suggested Guidelines range of 41 to 51

months. [Id. ¶ 52] However, because Count I involved in excess of 100

kilograms of marijuana and offenses involving 100 or more kilograms of

marijuana carry a mandatory minimum five-year sentence, see 21 U.S.C. §

841(b)(1)(B ), the PSR concluded the Guideline sentence was five years. USSG §

5G1.1(b) (“W here a statutorily required minimum sentence is greater than the

maximum of the applicable Guideline range, the statutorily required minimum

sentence shall be the Guideline sentence.”). The PSR further concluded that M r.

M endoza-Borunda did not qualify for “safety-valve” relief from the m andatory

minimum sentence because he had more than one criminal history point. See

USSG § 5C1.2 (court shall impose a sentence within guidelines range, without

                                        -3-
regard to statutory minimum sentence, if, among other things, “the defendant does

not have more than 1 criminal history point”); 18 U.S.C. § 3553(f) (same).

      M r. M endoza-Borunda’s defense counsel filed a sentencing memorandum,

objecting to the PSR’s conclusion that M r. M endoza-Borunda was ineligible for

safety-valve relief. Specifically, counsel argued that the requirements for safety-

valve relief had been rendered advisory by United States v. Booker, 543 U.S. 220

(2005), and that the district court could (and should) disregard one of M r.

M endoza-Borunda’s two criminal history points and sentence him below the

mandatory minimum five-year sentence. In response, the government argued that

the district court lacked the authority to impose less than five-years’

imprisonment.

      At sentencing, defense counsel reiterated his argument that Booker had

rendered the requirements for safety-valve relief advisory. Before doing so,

however, he raised the possibility, for the first time, that M r. M endoza-Borunda’s

2003 DW I conviction might be constitutionally infirm because he was denied the

right to an attorney. Defense counsel did not introduce any evidence in support

of this belated argument. Instead, he merely noted that the PSR indicated that

M r. M endoza-Borunda had “waived attorney representation” in the 2003 DW I

proceedings, but “there was no proof” in discovery that the waiver was

constitutional. Rec. vol. IV, at 5.

      The district court rejected these contentions. The court first explained that

                                          -4-
a presumption of regularity attaches to prior convictions and that M r. M endoza-

Borunda bore the burden of proving his 2003 DW I conviction was

unconstitutional. The district court then stated that it lacked the authority to

ignore one of M r. M endoza-Borunda’s criminal history points in order to render

him eligible for safety-valve relief. As a result, the court adopted the PSR’s

factual findings and Guideline calculations, and sentenced M r. M endoza-Borunda

to the statutorily mandated five years’ imprisonment follow ed by four years’

supervised release. The district court also ordered M r. M endoza-Borunda to pay a

special assessment of one hundred dollars for each count of conviction.

      At the end of the sentencing hearing, M r. M endoza-Borunda requested an

extension to appeal his case. The district court, however, denied his request

because the PSR (erroneously) stated that he had pleaded guilty pursuant to a plea

agreement and waived his right to appeal therein. W hile the parties failed to

object to this error, a review of the record makes clear that M r. M endoza-Borunda

pleaded guilty without the benefit of a plea agreement.

      Defense counsel filed a notice of appeal and a motion to withdraw. W e

granted the motion. M r. M endoza-Borunda retained new counsel, who was

subsequently removed for failing to file a brief and an appendix. M r. M endoza-

Borunda’s current appellate counsel w as then assigned to the case.

                                          II.

      On appeal, M r. M endoza-Borunda’s new ly appointed appellate counsel first

                                          -5-
maintains that we should decline to enforce M r. M endoza-Borunda’s waiver of

appellate rights because it was not made knowingly and voluntarily. This

argument is unnecessary. Because M r. M endoza-Borunda pleaded guilty without

the benefit of a plea agreement, he did not waive his right to appeal.

Accordingly, we may consider his substantive claims.

      M r. M endoza-Borunda’s appellate counsel next argues the district court

erred “by denying M r. M endoza-Borunda ‘safety valve’ treatment” under USSG §

5C1.2 and 18 U.S.C. § 3553(f). Aplt’s Br. at 5. W e review for clear error the

district court’s determination that the defendant failed to meet his or her burden

to establish safety-valve eligibility. See United States v. Stephenson, 452 F.3d

1173, 1180 (10th Cir. 2006). However, we review de novo the district court’s

interpretation of either the scope or meaning of the safety-valve provisions. Id.

      W e conclude the district court properly denied M r. M endoza-Borunda

safety-valve relief. First, because defense counsel failed to present any evidence

that M r. M endoza-Borunda’s 2003 DW I conviction was constitutionally infirm,

the district court did not commit clear error in adopting the PSR’s finding that

M r. M endoza-Borunda had two criminal history points. See United States v.

Bush, 405 F.3d 909, 921 (10th Cir. 2005) (stating that the defendant bears the

burden to “prove by a preponderance of the evidence that [a] conviction [was]

unconstitutional” and cannot satisfy this burden by “simply point[ing] to a silent

or ambiguous record, but must come forward with affirmative evidence

                                         -6-
establishing that the prior convictions were obtained in violation of the

Constitution”). Second, the district court correctly concluded that it could not

ignore one of M r. M endoza-Borunda’s criminal history points in order to make

him eligible for safety-valve relief. See United States v. Hernandez-Castro, 473

F.3d 1004, 1006 (9th Cir. 2007) (“[C]ourts have no authority to adjust criminal

history points for the purpose of granting safety valve relief from a mandatory

minimum sentence.”); United States v. Brehm, 442 F.3d 1291, 1300 (11th Cir.

2006) (“[T]he Supreme Court’s decision in Booker did not render the calculation

of eligibility requirements for safety-valve relief advisory.”); United States v.

M cKoy, 452 F.3d 234, 239-40 (3d Cir. 2006) (same); United States v. Barrero,

425 F.3d 154, 156-58 (2d Cir. 2005) (same). Thus, once the district court

concluded M r. M endoza-Borunda had two criminal history points, it had no

choice but to impose the statutorily required five-year sentence.

      In his reply brief, M r. M endoza-Borunda’s appellate counsel asserts for the

first time that both the PSR’s misrepresentation regarding the existence of a plea

agreement and the parties’ failure to apprise the district court of this error warrant

de novo re-sentencing. This issue is waived as it was not raised in the opening

brief. Anderson v. U.S. Dep’t. of Labor, 422 F.3d 1155, 1174 (10th Cir. 2005).

Even if we were inclined to ignore the waiver, M r. M endoza-Borunda cannot meet

the “demanding standard” of plain error review. United States v. Bruce, 458 F.3d

1157, 1165 (10th Cir. 2006).

                                         -7-
      Finally, we note that the district court entered a judgment of conviction and

concurrent sentence on Count II of the three-count indictment, despite the fact

that M r. M endoza-Borunda was only charged in and pleaded guilty to Counts I

and III. W hile the extra conviction and concurrent sentence did not affect the

length of M r. M endoza-Borunda’s mandatory minimum five-year prison term,

they must be vacated because of the potential for adverse collateral

consequences. 1 Rutledge v. United States, 517 U.S. 292, 301-02 (1996).

                                        III.

      For the foregoing reasons, we AFFIRM M r. M endoza-Borunda’s five-year

sentence, VACATE the district court’s judgment of conviction and sentence on

Count II, and REM AND with instructions to enter an amended judgment.

                                                    Entered for the Court,


                                                    Robert H. Henry
                                                    Circuit Judge




      1
        The erroneous conviction on Count II also resulted in M r. M endoza-
Borunda improperly paying an additional one hundred dollar special assessment.
The district court has, however, already remitted this amount to M r. M endoza-
Borunda on the motion of the government.

                                         -8-
