                                                                             F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                              July 27, 2005
                                 TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 04-4215
          v.                                               (D. Utah)
 FRANCISCO VALDEZ-                               (D.C. No. 2:03-CR-913-DB)
 PALACIOS, a/k/a Francisco Gama-
 Palacious, a/k/a Francisco
 Mendoza-Cruz, a/k/a Antonio
 Bentancourt-Arellano,

               Defendant-Appellant.




                            ORDER AND JUDGMENT *


Before EBEL, McKAY, and HENRY, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See F ED . R. A PP . P. 34( F ). 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        This order and judgment is not binding precedent, except under the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, 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 10 TH C IR . R. 36.3.
                                I. BACKGROUND

      Francisco Valdez-Palacios pleaded guilty to one count of illegal reentry

following deportation, in violation of 8 U.S.C. § 1326(a). The presentence report

calculated the offense level at twenty-two (a base offense level of eight, a

sixteen-level increase for a prior felony conviction for a crime of violence, and a

two-level reduction for acceptance of responsibility). At sentencing, the

government recommended an additional one-point reduction for acceptance of

responsibility. Based on an offense level of twenty-one and a criminal history of

VI, the district court determined the Guidelines range to be seventy-seven to

ninety-six months. Mr. Valdez-Palacios informed the court that he did not dispute

the guideline range and the criminal history category.

      The district court sentenced Mr. Valdez-Palacios to eighty-seven months’

incarceration. It provided the following explanation of that sentence:

             I have chosen a sentence midway between the low end and
             the top end of the guidelines. That takes almost a year off
             your sentence from what it could have been . . . . I know
             that is not much shorter, but it is a year.

                   I hope that you recognize that I’m doing it because
             I’m giving some credence to your story that your came
             back [to the United States] for your child’s kidney
             problem. And more importantly, I believe that you may be
             planning to turn your life around. You’re 37 years old and

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             I agree with [the probation officer] that if we just look at
             the record it is dismal, a very bad criminal record. I am
             sure if you return to this country illegally in the future that
             the next sentencing judge will be less inclined that I am
             today to give you any break at all.

Rec. vol. III, at 8-9 (Tr. of Aug. 18, 2004 Sentencing Hr’g).

.
                                  II. DISCUSSION

      The district court sentenced Mr. Valdez-Palacios on August 18, 2004,

before the United States Supreme Court issued its decision in United States v.

Booker, 125 S. Ct. 738 (2005). In this appeal, Mr. Valdez-Palacios argues that, in

light of Booker, the district court erred in applying the United States Sentencing

Guidelines as mandatory. He characterizes this error as structural and contends

that we should remand the case for resentencing under the discretionary post-

Booker scheme.

      Because Mr. Valdez-Palacios did not object in the district court

proceedings to the mandatory application of the Guidelines, our review is for

plain error. See United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.

2005) (en banc). “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 the proceedings.” Id. at 731-32 (quotation marks

and citation omitted).




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      In conducting this analysis, we must first determine the particular kind of

Booker error at issue. As we have explained, Booker indicates that sentencing

courts can make two types of errors in applying the Guidelines. First, “a court

could err by relying on judge-found facts, other than those or prior convictions, to

enhance a defendant’s sentence mandatorily.” Id. Because this practice is barred

by the Sixth Amendment, we have christened it “constitutional Booker error.” Id.

Second, “a sentencing court could err by applying the Guidelines in a mandatory

fashion, as opposed to a discretionary fashion, even though the resulting sentence

was calculated solely upon facts that were admitted by the defendant, found by

the jury, or based upon the fact of a prior conviction.” Id. at 731-32. This

second type of error is now known as “non-constitutional Booker error.” Id.

at 732.

      Here, other than the prior convictions, the district court relied solely on

facts that Mr. Valdez-Palacios had admitted. Accordingly, Mr. Valdez-Palacios

has alleged only non-constitutional Booker error—that he was improperly

sentenced under the mandatory Guidelines scheme. Upon review of the record

and the applicable law, we conclude that although the district court committed (1)

non-constitutional Booker error that (2) was plain, Mr. Valdez-Palacios has failed

to establish either that this error (3) affected his substantial rights or (4) seriously

affected the fairness, integrity, or public reputation of judicial proceedings.



                                           -4-
      As to the third prong, Mr. Valdez-Palacios has the burden of showing that

his substantial rights have been affected. Id. at 732-33. To satisfy that burden,

he must show a reasonable probability that “had the district court’s applied the

post-Booker sentencing framework, he would have received a lesser sentence.”

United States v. Trujillo-Terrazas, 405 F.3d 814, 819 (10th Cir. 2005). He may

make that showing by pointing to the sentencing judge’s expressions of

unhappiness with the mandatory nature of the Guidelines. Gonzalez-Huerta, 403

F.3d at 734. Alternatively, he may attempt to argue, based on the facts of his

case, that there is a reasonable probability that his sentence would have been

different had the sentencing judge not viewed the Guidelines as mandatory. Id.

      As to the fourth prong of the plain error inquiry, Mr. Valdez-Palacios must

demonstrate that the non-constitutional error is “particularly egregious” and that

“our failure to notice the error would result in a miscarriage of justice.” Id. at

736 (internal quotation marks omitted). Conclusory statements as to the gravity

of the error are insufficient to satisfy this “demanding” standard. Id. at 737-38.

      Here, Mr. Valdez-Palacios does not even attempt to argue that he would

receive a lesser sentence under the post-Booker discretionary scheme. Instead, he

argues that the non-constitutional Booker error is structural and thus does not

require a showing of prejudice. We have directly rejected that proposition. See

Gonzalez-Huerta, 403 F.3d at 734 (holding that “non-constitutional Booker error



                                          -5-
is not structural error”). In light of Mr. Valdez-Palacios’s failure to argue that he

was prejudiced by the mandatory application of the Guidelines, he has failed to

satisfy the third and fourth parts of the plain error inquiry.



                                 III. CONCLUSION

      Accordingly, we AFFIRM Mr. Valdez-Palacios’s sentence.



                                         Entered for the Court,



                                         Robert H. Henry
                                         Circuit Judge




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