                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                       December 21, 2005
                     UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT                          Clerk of Court


 UNITED STATES of AMERICA,

          Plaintiff-Appellee,
                                                         No. 04-2281
 v.
                                                   (D.C. No. CR-04-26-JB)
                                                          (D. N.M.)
 DAGOBERTO RAMOS-RUIZ,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before EBEL, HENRY and MCKAY, Circuit Judges.



      Defendant-Appellant Dagoberto Ramos-Ruiz pleaded guilty to illegal

reentry after deportation following an aggravated felony. On appeal, he alleges

that he is entitled to be resentenced in light of United States v. Booker, 543 U.S.




      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
220 (2005), because the district court mandatorily imposed a sentence according

to the Federal Sentencing Guidelines. We disagree.

I. Factual Background

      On October 4, 2003, United State Boarder Patrol agents encountered Mr.

Ramos in southwestern New Mexico near the Santa Teresa Port of Entry. Ramos

told the agents he was a citizen of Honduras, and immigration records revealed

that he had been deported from the United States on three previous occasions.

Prior to his most recent deportation, Mr. Ramos had been convicted of assault

with a deadly weapon in California state court.

      On January 8, 2004, a federal grand jury indicted Mr. Ramos for illegal

reentry after deportation following an aggravated felony, and Mr. Ramos pleaded

guilty to the indictment on March 8, 2004. The PSR assigned a base offense level

of eight to Mr. Ramos’ conviction pursuant to U.S.S.G. § 2L1.2(a). It then

assigned a sixteen-level enhancement, pursuant to § 2L1.2(b)(1)(A)(iii), because

Mr. Ramos had been convicted of a crime of violence—assault with a deadly

weapon—and a three-level reduction for acceptance of responsibility pursuant to

§ 3E1.1. With a criminal history category III, Mr. Ramos’ Guideline sentencing

range was forty-six to fifty-seven months in prison. Mr. Ramos objected to the

PSR based on Blakely v. Washington, 542 U.S. 296 (2004).




                                       -2-
      At the sentencing hearing, the district court overruled Mr. Ramos’ Blakely

objection. The court then adopted the PSR’s recommendations and sentenced Mr.

Ramos to forty-six months in prison, the low end of the Guideline range. The

court also imposed an alternative sentence in the event the Guidelines were found

unconstitutional of forty-six months in prison. Mr. Ramos timely filed his appeal.

II. Discussion

      Sentencing Mr. Ramos pre-Booker, the district court committed non-

constitutional Booker error by applying the Guidelines in a mandatory fashion. 1

See United States v. Gonzales-Huerta, 403 F.3d 727, 731 (10th Cir. 2005) (en

banc). Mr. Ramos preserved that error by raising a Blakely objection. See United

States v. Labastida-Segura, 396 F.3d 1140, 1142-43 (10th Cir. 2005). We

therefore review for harmless error. Id.

      Non-constitutional Booker error is harmless when “we are not required to

engage in any speculation . . . because the district court explained exactly what it

would do if the Guidelines were found unconstitutional.” United States v.

Corchado, 427 F.3d 815, 821 (10th Cir. 2005). Thus, where, as here, the district

court imposes an alternative sentence in a sentencing regime in which the

guidelines are advisory rather than mandatory and that sentence is identical to the



      1
        The record does not indicate that any constitutional Booker error
occurred, and Mr. Ramos raises only non-constitutional in his appeal.

                                        -3-
sentence imposed under a mandatory Guideline regime, non-constitutional error

does not warrant a remand. See United States v. Serrano-Dominguez, 406 F.3d

1221, 1223-24 (10th Cir. 2005). “Although the district court did not specify that

it was applying the sentencing methodology suggested in Booker—namely

consultation of the advisory Guidelines and the factors listed in 18 U.S.C.

§ 3553(a)—we know that the court consulted the Guidelines and adopted the

findings in the PSR, which analyzed several of the factors set forth in 18 U.S.C.

§ 3553(a)” in sentencing Mr. Ramos. See id.; see also United States v. Rines, 419

F.3d 1104, 1107 (10th Cir. 2005), pet. for cert. filed (U.S. Nov. 14, 2005) (No.

05-7719) (recognizing that the district court need not “march through § 3553(a)’s

sentencing factors” before we uphold a sentence).

III. Conclusion

      Because the district court announced an identical alternative sentence,

which applied the methodology suggested in Booker, we AFFIRM Mr. Ramos’

sentence.




                                       ENTERED FOR THE COURT




                                       David M. Ebel

                                        -4-
Circuit Judge




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