                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                       August 24, 2005
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
                                                       No. 04-2306
 vs.                                              (D.C. No. CR-03-1405)
                                                         (D.N.M.)
 UBALDO RAMOS-MARTINEZ,

           Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges. **


       Defendant-Appellant Ubaldo Ramos-Martinez appeals from the sentence

imposed upon his conviction of conspiracy in violation of 21 U.S.C. § 846 and

distribution of more than 500 grams of a mixture or substance containing a

detectable amount of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1)

and 842(b)(1) and 18 U.S.C. § 2. At sentencing, the district court, over Mr.

       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Ramos-Martinez’s objections, applied the Sentencing Guidelines and relied upon

computer print-outs obtained by the probation office in enhancing Mr. Ramos-

Martinez’s sentence for six prior convictions. Mr. Ramos-Martinez’s guideline

imprisonment range was 292 to 365 months and the district court sentenced him

to 292 months imprisonment.

      On appeal, Mr. Ramos-Martinez presents two claims. First, following

Blakely v. Washington, 542 U.S. 296 (2004) and United States v. Booker, 125 S.

Ct. 738 (2005), he argues that the district court erroneously sentenced him in

accordance with the sentencing guidelines, which it viewed as mandatory. The

United States, recognizing that this case is controlled by United States v.

Labastida-Segura, 396 F.3d 1140 (10th Cir. 2005), concedes that we should

remand for resentencing. Aplee. Br. at 10.

      Mr. Ramos-Martinez also argues that the district court erred in calculating

his criminal history score because it based that determination on records that were

not sufficiently reliable. Although such documentation seems to be an

appropriate basis upon which to base a criminal history score, see United States v.

Simpson, 94 F.3d 1373, 1381 (10th Cir. 1996); United States v. Esparza-Varela,

No. 03-2279, 2004 WL 1280531, at *4 (10th Cir. June 10, 2004), we need not

make that determination because of our remand. If Mr. Ramos-Martinez wishes

to pursue this contention further, he may do so at resentencing.


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      We GRANT Mr. Ramos-Martinez’s motion to proceed IFP and REMAND

for re-sentencing.

                                Entered for the Court


                                Paul J. Kelly, Jr.
                                Circuit Judge




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