                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          July 13, 2005

                                 TENTH CIRCUIT                       PATRICK FISHER
                                                                              Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 04-2289
 v.
                                                 (D.C. No. CR-04-258 WP)
                                                     (D. New Mexico)
 JOSE BENITO GUEVARA-
 RAMIREZ,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.



      Jose Benito Guevara-Ramirez pled guilty to one count of illegal reentry

following deportation after conviction for an aggravated felony, in violation of 8

U.S.C. §1326(a)(1), (2), and (b)(2). On appeal, he contends the district court

      *
       After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
unconstitutionally enhanced his sentence under a mandatory guidelines regime, in

violation of Blakey v. Washington, 124 S. Ct. 2531 (2004), on the basis of his

prior convictions. He also argues that the government did not sufficiently prove

the existence of two of these convictions, in violation of Shepard v. United States,

125 S. Ct. 1254 (2005). We vacate Mr. Guevara-Ramirez’s sentence and remand

for re-sentencing.

       Mr. Guevara-Ramirez’s plea to illegal reentry yielded a base offense level

of eight. U.S.S.G. § 2L1.2(a). His presentence report (PSR) recommended a

sixteen-level increase due to a prior conviction of assault with a deadly weapon

with great bodily injury, which was a crime of violence. § 2L1.2(b)(1)(A). His

offense level was decreased by three levels for acceptance of responsibility,

resulting in a total offense level of twenty-one. The PSR added three points to his

criminal history for the assault conviction. It then assigned one point for a 2001

conviction for driving under the influence, and another point for a 2003 felony

conviction for unlawful possession of one gram or less of a schedule 2 controlled

substance. Because Mr. Guevara-Ramirez committed the present offense while

under a criminal justice sentence in connection with his 2001 conviction, he was

subject to a further two point increase pursuant to U.S.C.G. § 4A1.1(d). In sum,

the PSR calculated seven criminal history points, resulting in a criminal history

category of IV and a guideline range of 57 to 71 months.


                                         -2-
      Citing Blakey, Mr. Guevara-Ramirez objected to his sentencing under a

mandatory guidelines scheme, and to the characterization of his assault conviction

as a “crime of violence.” He also objected to the inclusion of criminal history

points for his 2001 and 2003 convictions on the grounds that the government had

not sufficiently proven they existed. The district court overruled both objections.

It concluded that Blakey did not mandate a different sentence, and found that

documents produced by the government were sufficient to prove the existence of

the prior convictions by a preponderance of the evidence. It sentenced him at the

bottom of the guideline range, to 57 months imprisonment.

      In United States v. Booker, 125 S. Ct. 738 (2005), the Supreme Court

applied Blakey to the Sentencing Guidelines to hold the Sixth Amendment

requires that “[a]ny fact (other than a prior conviction) which is necessary to

support a sentence exceeding the maximum authorized by the facts established by

plea of guilty or a jury verdict must be admitted by the defendant or proved to the

jury beyond a reasonable doubt.” Id. at 756. To remedy the Sixth Amendment

difficulties with the guidelines, the Court also invalidated their mandatory

application and required that district courts apply them as merely advisory. Id.

(excising 18 U.S.C. §§ 3553(b)(1)). Thus, the Court in Booker established two

distinct types of error that can be committed by a court at sentencing: violations

of the Sixth Amendment and of Booker’s remedial holding. See United States v.


                                         -3-
Gonzalez-Huerta, 403 F.3d 727, 731-32 (10th Cir. 2005).

      The record demonstrates that the district court applied the guidelines

involuntarily to Mr. Guevara-Ramirez thereby violating Booker’s remedial

holding. See United States v. Labastida-Segura, 396 F.3d 1140, 1142 (10th Cir.

2005). Mr. Guevara-Ramirez preserved this issue for appeal by raising his Blakey

challenge below. See id. at 1142-43. “[O]nce the court of appeals has decided

that the district court misapplied the Guidelines, a remand is appropriate unless

the reviewing court concludes, on the record as a whole, that the error was

harmless, i.e., that the error did not affect the district court’s selection of the

sentence imposed.” Id. at 1143 (quoting Williams v. United States, 503 U.S. 193,

203 (1992)). The government concedes that Labastida-Segura applies to this case

and that a remand is appropriate. We therefore remand for re-sentencing on this

ground.

      Mr. Guevara-Ramirez further contends he should not have received

criminal history points on the basis of the 2001 and 2003 convictions because the

government did not present sufficient evidence that these convictions existed. He

also challenges his receipt of two additional points for committing the present

offense while under a criminal justice sentence in connection with the 2001

conviction. He claims that without these disputed convictions, his criminal

history score would have been 3, his criminal history category II, and his


                                           -4-
sentencing range 41 to 51 months imprisonment. To prove these convictions, the

government presented printouts of computer records from the Colorado courts

where the convictions were allegedly secured via guilty pleas. For the 2001

conviction and sentence, the record consisted of an uncertified Register of Action.

Aple. Br. Ex. 4. The government also submitted minute orders with a Register of

Action, also uncertified, to substantiate the 2003 conviction. Id. Ex. 5.

      Mr. Guevara-Ramirez argues that the uncertified registers of action and

minute orders do not fall within the constraints of Shepard. On remand, the

district court should consider whether the government’s proffers establish its

burden in light of Shepard. Cf., e.g., United States v. Taylor, 2005 WL 1519115,

at *9 (10th Cir. Jun. 28, 2005).

      For the aforementioned reasons, we VACATE the district court’s sentence

and REMAND for further proceedings consistent with this opinion.

                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Circuit Judge




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