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

                                                                    December 19, 2006
                      UNITED STATES CO URT O F APPEALS
                                                                   Elisabeth A. Shumaker
                                   TENTH CIRCUIT                       Clerk of Court



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

          Plaintiff - Appellee,
                                                         No. 05-2002
 v.                                               (D.C. No. CR-03-1890 JB)
                                                          (D .N.M .)
 JUA N G AB RIEL M OR ALES-OR TIZ,

          Defendant - Appellant.



                              OR DER AND JUDGM ENT *


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.


      Juan Gabriel M orales-O rtiz challenges his sentence on direct appeal.

Pursuant to a plea agreement, M orales-Ortiz pled guilty to an information

stipulating that he conspired to distribute cocaine in violation of 21 U.S.C.

§§ 841(a), 841(b)(1)(C), and 846. His plea agreement referenced a total drug

quantity of two kilograms. The district court sentenced M orales-Ortiz on




      *
        The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent except under the doctrines of law of the case,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 (eff. Dec. 1, 2006) and 10th Cir. R.
32.1 (eff. Jan. 1, 2007).
December 20, 2004, treating the Guidelines as mandatory, and imposed a sentence

of 57 months’ imprisonment, at the bottom of the applicable Guidelines range.

      M orales-Ortiz does not challenge the validity of his conviction or the

calculation of his Guidelines range, but asks this court to remand for resentencing

in accordance with the Supreme Court’s decision in United States v. Booker, 543

U.S. 220 (2005). 1 He concedes that our decision in United States v. Gonzalez-

Huerta, 403 F.3d 727 (2005), controls. In that case, we held that plain error

review is appropriate when, as here, the district court relied solely on admitted

facts and Booker error was not alleged below . Id. at 732. “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. (quotation omitted). M orales-Ortiz admits in his brief that

“[h]e cannot [show plain error] on the present record,” but “raises the issues

solely to preserve them for Supreme Court review.” W e are bound by Gonzalez-

Huerta and must affirm.

      M orales-Ortiz’s appeal is DENIED and the sentencing determination of the




      1
        Although the government was within its rights to seek enforcement of
M orales-Ortiz’s plea w aiver, it has opted to argue this case on the merits. As
such, we decline to decide the case on that ground. See United States v. Clark,
415 F.3d 1234, 1238 n.1 (10th Cir. 2005).

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district court is AFFIRM ED.


                               ENTERED FOR THE COURT



                               Carlos F. Lucero
                               Circuit Judge




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