                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-4428



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus


URIEL MORENO-MENDOZA,

                                             Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-04-248-NCT)


Argued:   March 17, 2006                   Decided:   April 19, 2006


Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Christopher R. Clifton, GRACE, HOLTON, TISDALE & CLIFTON,
Winston-Salem, North Carolina, for Appellant.     Angela Hewlett
Miller, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee.     ON
BRIEF: Mireille P. Clough, GRACE, HOLTON, TISDALE & CLIFTON,
Winston-Salem, North Carolina, for Appellant. Anna Mills Wagoner,
United States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

      Uriel Moreno-Mendoza appeals his sentence for illegal reentry

of an aggravated felon, a violation of 8 U.S.C. § 1326(a), (b)(2).

Moreno-Mendoza contends that his sentence, which exceeded the

maximum range recommended under the now advisory United States

Sentencing Guidelines (“Guidelines”), violated his constitutional

rights under the Ex Post Facto Clause and the Due Process Clause.

He   alternatively    asserts    that    his   sentence     was   unreasonable.

Although the constitutional arguments raised by Moreno-Mendoza are

without merit, we agree that the sentence was unreasonable and must

be vacated.



                                        I.

      After being indicted by a grand jury, Moreno-Mendoza entered

into a plea agreement with respect to the charge of illegal re-

entry of an aggravated felon.       The plea agreement stipulated that

Moreno-Mendoza had unlawfully reentered the United States after

receiving    a   two-year   sentence     for   the   sale   and       transport   of

marijuana, in violation of California Health and Safety Code §

11360(a).

      The   Probation   Office   subsequently        prepared     a    presentence

investigation report (“PSR”), which initially calculated a base

offense level of eight under § 2L1.2 of the 2003 Guidelines.

Because § 2L1.2 permits enhancements based on the specific nature


                                        2
of the prior conviction, the PSR recommended a sixteen-level

enhancement by characterizing defendant’s prior drug conviction as

a “drug trafficking offense for which the sentence imposed exceeded

13 months . . . .”          See § 2L1.2(b)(1)(A)(I); J.A. 61.                   After

crediting     Moreno-Mendoza       with       a    three-level      reduction    for

acceptance of responsibility, the PSR calculated a total offense

level of twenty-one.       The PSR also computed three criminal history

points based on Moreno-Mendoza’s prior drug conviction, thereby

placing him in criminal history category II.                  Ultimately, the PSR

recommended a Guidelines range of forty-one to fifty-one months.

     Moreno-Mendoza objected to the sixteen-level enhancement,

asserting that his prior drug conviction did not qualify as a drug

trafficking      offense   under   §   2L1.2(b)(1)(A)(I).            He   conceded,

however, that the conviction would qualify as an “aggravated

felony” under § 2L1.2(b)(1)(C), which would have increased his

offense level by eight levels.

     At    the   sentencing    hearing,       the    district    court    addressed

Moreno-Mendoza’s objection to the sixteen-level enhancement and

determined that the underlying state court documents could not

establish that his prior drug conviction was a drug trafficking

offense.     For this reason, the district court declined to impose

the sixteen-level enhancement and, after applying a base offense

level   of   eight   and   a   two-level          reduction   for   acceptance    of

responsibility, calculated a total offense level of six.                    Finding


                                          3
a criminal history category of II, the district court concluded

that the appropriate Guidelines range was one to seven months.

     After   finalizing   this   calculation,    the   district   court

expressed its desire to consider the challenged sixteen-level

enhancement as if the prior drug conviction had qualified as a drug

trafficking offense.    See J.A. 26 (“[W]hile under the Guidelines I

could not consider the facts of an individual case in determining

whether the points would be appropriate, . . . under 3553(a), he

should be sentenced as if the 16 levels were appropriate, and will

find that an appropriate Sentencing Guideline range would be 41 to

51 months.” (emphasis added)); see also J.A. 23 (“[A]s I read

Booker, our first task is to determine what the Guideline range

properly is, but I must tell you, then after we determine that

Guideline range, in the exercise of my discretion, I am going to

consider these facts as constituting a drug trafficking crime, so

it’s going to come out to the same thing.”).       The district court

thus opined that “[i]n determining a reasonable sentence under

3553, it is my belief that the only way to fairly do that is to

consider what the sentence would have been if the 16 levels were

added in to the consideration.”       J.A. 40.    In considering the

Guidelines range of forty-one to fifty-one months that would have

resulted from imposing the sixteen-level enhancement, the district

court imposed a sentence of forty-one months.      Moreno-Mendoza now

appeals his sentence.


                                  4
                                      II.

                                       A.

       Moreno-Mendoza first contends that the district court violated

his constitutional rights under the Ex Post Facto Clause and the

Due   Process   Clause    by   imposing     a   sentence    that    exceeded   the

Guidelines range.         Specifically, he claims that the retroactive

application of Justice Breyer’s remedial opinion in United States

v.    Booker,   543   U.S.   220,   244-271     (2005),    which    rendered   the

Guidelines advisory, unconstitutionally exposes defendants who

committed their offenses before Booker to higher sentences under

the    discretionary     sentencing   regime     of   §    3553.1    In   seeking

resentencing, Moreno-Mendoza thus argues that the Ex Post Facto

Clause and Due Process Clause required the district court to

sentence him anywhere below, but not above, the sentencing range

prescribed by the Guidelines.

       We review these constitutional errors for plain error because

they were never presented to the district court.               United States v.

Hughes, 401 F.3d 540, 547 (4th Cir. 2005) (citing Fed. R. Crim. P.

52(b)); United States v. Olano, 507 U.S. 725, 731-32 (1993)).

Under this standard, we conclude that Moreno-Mendoza has failed to


       1
      Given that he was sentenced under the now advisory Guidelines
regime following Booker, Moreno-Mendoza has not asserted the
typical Sixth Amendment error identified by Justice Stevens’s
merits opinion--i.e., that the district court relied on judicial
factfinding in imposing a sentence greater than the maximum
authorized by the admitted facts or verdict under the previously
mandatory Guidelines regime.

                                       5
establish error in the first instance. As our sister circuits have

concluded, the retroactive application of Booker’s remedial opinion

to sentences for offenses committed prior to Booker does not offend

the Ex Post Facto Clause or the Due Process Clause.   This is true

even where the defendant has received a greater sentence under the

now advisory Guidelines regime than the sentence he normally would

have received under the formerly mandatory Guidelines regime.   See

United States v. Dupas, 419 F.3d 916, 919-21 (9th Cir.), cert.

denied, --- S. Ct. ----, 2006 WL 316714 (2006) (rejecting Ex Post

Facto and Due Process challenges to the application of Justice

Breyer’s remedial opinion in Booker);   United States v. Jamison,

416 F.3d 538, 539-40 (7th Cir. 2005) (same); United States v. Lata,

415 F.3d 107, 110-11 (1st Cir. 2005) (same); United States v.

Scroggins, 411 F.3d 572, 575-77 (5th Cir. 2005) (same); United

States v. Duncan, 400 F.3d 1297, 1307 (11th Cir.), cert. denied,

126 S. Ct. 432 (2005) (same).   Accordingly, we decline to disturb

the sentence based on these constitutional challenges.



                                B.

     Moreno-Mendoza next asserts that his sentence was unreasonable

in light of the Guidelines range of one to seven months.   Although

he concedes that the proper Guidelines range should have been

fifteen to twenty-one months, he nevertheless argues that the

district court improperly applied the § 3553 factors in imposing a


                                 6
sentence of forty-one months.        We agree that the sentence must be

vacated as unreasonable.

     When reviewing a post-Booker sentence, we must “determine

whether the sentence is within the statutorily prescribed range and

is reasonable.”     United States v. Moreland, 437 F.3d 424, 433 (4th

Cir. 2006) (internal quotation marks and citations omitted).                  This

Circuit’s decision in United States v. Green, 436 F.3d 449 (4th

Cir. 2006), set forth the roadmap to assist sentencing courts in

applying    the   Guidelines   and   §       3553   in   imposing   a   reasonable

sentence:

     [D]istrict courts must (1) properly calculate the
     sentence range recommended by the Sentencing Guidelines;
     (2) determine whether a sentence within that range and
     within statutory limits serves the factors set forth in
     § 3553(a) and, if not, select a sentence that does serve
     those factors; (3) implement mandatory statutory
     limitations; and (4) articulate the reasons for selecting
     the particular sentence, especially explaining why a
     sentence outside of the Sentencing Guideline range better
     serves the relevant sentencing purposes set forth in §
     3553(a).

Id. at 456 (internal footnote and citation omitted).

     Under Green, a sentence imposed within the Guidelines range is

“presumptively reasonable.” Id. at 457 (internal quotation marks

and citations omitted). Where, as here, the sentence deviates from

the Guidelines range, we must determine whether, in light of the

factors set forth in § 3553 and the relevant Guidelines provisions,

the district court “acted reasonably with respect to (1) the

imposition of a variance sentence, and (2) the extent of the


                                         7
variance.” Moreland, 437 F.3d at 434 (internal citations omitted).

Particularly if the degree of variance is substantial, we must

“more carefully scrutinize the reasoning offered by the district

court in support of the sentence.”          Id. at 434.   In other words,

“[t]he farther the court diverges from the advisory guideline

range, the more compelling the reasons for that divergence must

be.”    Id. (internal citations omitted).

       In this instance, the district court calculated a Guidelines

range of one to seven months after determining that the facts did

not support a sixteen-level enhancement for Moreno-Mendoza’s prior

drug conviction.     Nevertheless, the district court stated its

intent to consider the sixteen-level enhancement as if it applied

to the prior drug conviction for the purposes of fashioning a

reasonable   sentence   under   §   3553.     By   ultimately   imposing   a

sentence of forty-one months (the bottom of the Guidelines range

had the sixteen-level enhancement applied), the district court

effectively sought to do at the back end what it could not do at

the front end: enhance Moreno-Mendoza’s sentence by treating his

prior drug offense as a de facto drug trafficking offense.

       Although we agree that the initial decision to impose a

variance sentence was sound, the degree of variance between the

forty-one months imposed and the proper Guidelines range, which




                                     8
defendant     conceded     was    fifteen       to    twenty-one       months,2   was

unreasonable.       In light of the substantial variance, the district

court was obligated to offer compelling reasons explaining why the

chosen   sentence,      which    nearly       doubled    the    maximum     sentence

recommended    by    the   Guidelines,         better   served     the    sentencing

considerations enumerated in § 3553(a).                 Green, 436 F.3d at 456;

Moreland,   437     F.3d   at    434.         Here,   despite    the     appropriate

Guidelines range of fifteen to twenty-one months, the district

court expressed its intention to apply the Guidelines range that

would have resulted from adding the sixteen-level enhancement in

reaching a sentence of forty-one months. In our view, however, the

district court’s application of a de facto enhancement outside the

Guidelines calculation effectively undermined the first step in the

Green analysis, which requires district courts to calculate the

proper Guidelines range.          See Green, 436 F.3d at 456 (district

courts must “properly calculate the sentence range recommended by

the Sentencing Guidelines”).3 Moreover, the district court did not


     2
      As noted above, Moreno-Mendoza conceded that the prior drug
conviction would qualify for an eight-level enhancement as an
“aggravated felony” under § 2L1.2(b)(1)(C) before the district
court. He reiterated this concession before this Court at oral
argument.
     3
      The Government has attempted to equate authorized departures
for de facto career offenders under § 4A1.3 with the de facto
enhancement sought here. However, the analogy is imperfect because
departures are limited to the enumerated grounds set forth by the
Guidelines, whereas variances are not bound by the Guidelines. See
Moreland, 437 F.3d at 436 n.8 (noting that previous decisions
regarding departures from a career offender range under the

                                          9
give proper weight to the appropriate Guidelines range in balancing

the § 3553 factors, choosing instead to focus exclusively on the

Guidelines    range   it   could   not   impose.     See   id.   at   457

(reasonableness depends on whether the sentence was “selected

pursuant to a reasoned process in accordance with law, in which the

court did not give excessive weight to any relevant factor, and

which effected a fair and just result in light of the relevant

facts and law.”).

     We therefore conclude that the district court’s reason for the

degree of variance was inconsistent with Green and Moreland, to the

extent that it could not support the sentence.4        See 18 U.S.C. §

3742(f)(2).     Accordingly, we vacate the sentence and remand for

resentencing.

                                                   VACATED AND REMANDED




formerly mandatory Guidelines regime “may inform,” but “cannot
control,” the analysis of variances from the career offender
range).
     4
      We of course offer no criticism of the district court, which
did not have the benefit of Green or Moreland at the time of
sentencing.

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