                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                        August 23, 2005

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 04-3336
 v.                                            (D.C. No. 04-CR-10052-JTM)
                                                         (Kansas)
 ALFONSO ANTUNEZ-OBREGON,

          Defendant-Appellant.



                          ORDER AND JUDGMENT *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Alfonso Antunez-Obregon pled guilty to one count of illegal reentry by an

alien deported subsequent to conviction for an aggravated felony in violation of 8

U.S.C. § 1326(a) and (b)(2). The presentence report (PSR) recommended Mr.

Antunez receive a twelve-level enhancement for a prior “drug trafficking offense”

pursuant to U.S.S.G. § 2L1.2(b)(1)(B), due to his previous state conviction for

      *
       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judgment is not binding precedent, except under the doctrines of law of the case,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.
“illegal barter, expenditure, or investment” in violation of T EX . H EALTH &

S AFETY C ODE § 481.126. The twelve-level enhancement coupled with a three-

level adjustment for acceptance of responsibility resulted in a total offense level

of 17. Based on this offense level and a criminal history category of I, Mr.

Antunez’s guidelines range was calculated at 24 to 30 months imprisonment. Mr.

Antunez objected to the PSR’s recommendation, arguing that (1) use of a prior

conviction to enhance his sentence was a Blakely violation and (2) a conviction

for “illegal investment” does not constitute a “drug trafficking offense” within the

meaning of § 2L1.2(b)(1)(B). The district court overruled Mr. Antunez’s

objections and sentenced him at the bottom of the guidelines range to 24 months

imprisonment. We remand for resentencing.

      Mr. Antunez first contends the district court’s use of his prior conviction

for illegal investment constitutes a violation of Blakely v. Washington, 124 S. Ct.

2531 (2004). Specifically, Mr. Antunez submits that Blakely requires the fact of a

prior conviction to be alleged in the indictment and proved to a jury beyond a

reasonable doubt. We disagree.

      In Blakely, the Supreme Court applied the rule it expressed in Apprendi v.

New Jersey, 530 U.S. 466 (2000), to Washington state’s determinate sentencing

regime. Blakely, 124 S. Ct. at 2536. Subsequent to briefing in the instant appeal,

the Court extended Apprendi and Blakely to the federal sentencing guidelines,


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holding that the Sixth Amendment requires “[a]ny fact (other than a prior

conviction) which is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable doubt.” United

States v. Booker, 125 S. Ct. 738, 756 (2005) (emphasis added). To remedy the

guidelines’ Sixth Amendment violation, the Court severed and excised 18 U.S.C.

§ 3553(b)(1), which required sentencing courts to impose a sentence within the

applicable guidelines range, subject to departures in limited circumstances. Id. at

764-65. As a result, the guidelines are now advisory in all cases. Id. at 769. In

addition, the Court expressly stated that its “remedial interpretation of the

Sentencing Act” must be applied “to all cases on direct review.” Id. Thus, we

evaluate Mr. Antunez’s appeal in light of the Court’s holding in Booker.

      In this case, the facts that increased Mr. Antunez’s penalty beyond the

statutory maximum are facts of prior conviction, for which Apprendi, Blakely,

and, most recently, Booker, make specific exception. See id. at 749. As we noted

recently, a guidelines enhancement based on the fact of a prior conviction simply

does not implicate the Sixth Amendment concerns on which the holdings of either

Blakely or Booker were based. United States v. Gonzalez-Huerta, 403 F.3d 727,

738 (10th Cir. 2005) (en banc). Nevertheless, Mr. Antunez’s sentence does

implicate Booker’s remedial holding, which makes the guidelines advisory in all


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cases pending on direct review. See id. at 731-32.

      Because Mr. Antunez raised a Blakely challenge to the constitutionality of

his sentence before the district court, his argument on appeal is subject to review

for harmless error under Rule 52(a) of the Federal Rules of Criminal Procedure.

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

Rule 52(a) provides that “[a]ny error, defect, irregularity, or variance that does

not affect substantial rights must be disregarded.” F ED . R. C RIM . P. 52(a). The

district court committed error, albeit unknowingly, by sentencing Mr. Antunez

under guidelines which it viewed as mandatory. As this court has held:

      Although the Supreme Court indicated that not every guideline sentence
      contains Sixth Amendment error, and not every appeal requires
      resentencing . . . in this case (where the error was properly preserved) we
      cannot conclude that the error is harmless. Here, where it was already at
      the bottom of the guidelines range, to say that the district court would have
      imposed the same sentence given the new legal landscape (even after
      consulting the Sentencing Guidelines in an advisory capacity) places us in
      the zone of speculation and conjecture–we simply do not know what the
      district court would have done after hearing from the parties. Though an
      appellate court may judge whether a district court exercised its discretion
      (and whether it abused that discretion), it cannot exercise the district
      court’s discretion.

Labastida-Segura, 396 F.3d at 1143 (internal citations omitted). Because Mr.

Antunez was sentenced at the bottom of the guidelines range and the government

has failed to proffer any argument that application of the guidelines as mandatory

was harmless, this case requires a remand for resentencing in accordance with

Labastida-Segura.

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      Mr. Antunez also argues that the district court erred by classifying his prior

state conviction for “illegal investment” as a “drug trafficking offense” pursuant

to § 2L1.2(b)(1)(B). In Shepard v. United States, 125 S. Ct. 1254 (2005), the

Supreme Court recently further restricted the “fact of a prior conviction”

exception to the rule of Apprendi. 1 We need not reach any issues connected to the

classification of Mr. Antunez’s prior conviction, however, because we have

already determined that the case must be remanded for re-sentencing. See United

States v. Cano-Silva, 402 F.3d 1031, 1038-39 (10th Cir. 2005).

      For the foregoing reasons, we VACATE Mr. Antunez’s sentence and

REMAND the case to the district court for resentencing in accordance with both

Booker and Shepard.

                                       SUBMITTED FOR THE COURT

                                       Stephanie K. Seymour
                                       Circuit Judge




      1
       In Shepard v. United States, 125 S. Ct. 1254, 1257 (2005), the Supreme
Court held that, for purposes of determining whether a prior burglary conviction
qualifies as a “violent felony” under the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e), “a later court determining the character of an admitted burglary
is generally limited to examining the statutory definition, charging document,
written plea agreement, transcript of plea colloquy, and any explicit factual
finding by the trial judge to which the defendant assented.”

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