                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                      January 24, 2006
                                 TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 05-2057
 v.                                               (D.C. No. CR-03-895-LH)
                                                        (New Mexico)
 JOSE MEDRANO,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.



      Jose Medrano brings this appeal asserting he was sentenced in violation of

United States v. Booker, 125 S. Ct. 738 (2005). We review “the district court’s

legal interpretation and application of the sentencing guidelines de novo . . . .”


      *
       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judgment is not binding precedent, except under the doctrines of law of the case,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.
United States v. Henry, 164 F.3d 1304, 1310 (10th Cir. 1999). Because the

district court did not run afoul of Booker in sentencing Mr. Medrano, we affirm

his sentence.

      Mr. Medrano was indicted by a grand jury of a single count of distribution

of five grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1)

and (b)(1)(B). In April 2004, he was found guilty by a jury. Soon thereafter, the

Supreme Court issued its decision in Blakely v. Washington, 542 U.S. 296 (2004).

Mr. Medrano objected to his pre-sentence report (PSR), claiming in part that

under Blakely his offense level should be calculated solely by the amount of

substance containing methamphetamine alleged in his indictment and found by the

jury rather than the weight of the substance set forth in the PSR. He also objected

to the PSR’s recommendation for an offense level increase for obstruction of

justice pursuant to U.S.S.G. § 3C1.1.

      The district court postponed sentencing to await the Supreme Court’s

decision in Booker. At sentencing, Mr. Medrano’s attorney reasserted his

objections to the PSR, arguing that calculation of Mr. Medrano’s offense level

should be limited to the facts found by the jury rather than facts found by the

judge by relying on the PSR. Mr. Medrano’s attorney did not challenge the

accuracy of the drug amounts listed in the PSR, however, and conceded that after

Booker the sentencing guidelines are advisory.


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      After hearing arguments, the district court declined to increase Mr.

Medrano’s offense level for obstruction of justice. But the court determined that

based on the amount of methamphetamine involved in the transaction as asserted

in the PSR, Mr. Medrano’s offense level should be 30. The court concluded that

Mr. Medrano’s total offense level, coupled with his criminal history category of I,

subjected him to an advisory sentencing range of 97 to 121 months in prison. The

court sentenced Mr. Medrano to 97 months.

      On appeal, Mr. Medrano contends the district court violated Booker by

calculating his offense level based on judge found facts rather than solely on facts

found by the jury. This argument highlights Mr. Medrano’s misunderstanding

Booker, which held “that mandatory application of the Guidelines violates the

Sixth Amendment when judge-found facts, other than those of prior convictions,

are employed to enhance a sentence.” United States v. Gonzalez-Huerta, 403 F.3d

727, 731 (10th Cir. 2005) (en banc) (emphasis added). In order to save guideline

sentencing from ultimate demise, the Court made the guidelines “effectively

advisory.” Booker, 125 S. Ct. at 756-57. Therefore, after Booker, a judge may

sentence a defendant based on judge-found facts so long as the court does not

apply the guidelines in a mandatory fashion. As we said in United States v.

Magallanez, 408 F.3d 672, 685 (10th Cir. 2005):

      [D]istrict courts are still required to consider Guideline ranges,
      which are determined through application of the preponderance

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      standard, just as they were before. The only difference is that the
      court has latitude, subject to reasonableness review, to depart from
      the resulting Guideline ranges. . . . [W]hen a district court makes a
      determination of sentencing facts by a preponderance test under the
      now-advisory Guidelines, it is not bound by jury determinations
      reached through application of the more onerous reasonable doubt
      standard. In this respect, the prior Guidelines scheme is unchanged
      by the seeming revolution of Booker.

Id. at 685 (citations omitted) (emphasis added). See also Gonzalez-Huerta, 403

F.3d at 731 (“[C]ourts are still required to consider the Guidelines in determining

sentences, but they are not required to impose a sentence within the Guideline

range.”).

      The district court did not depart from the procedure detailed in Magallanez

when it sentenced Mr. Medrano. It made findings to determine Mr. Medrano’s

offense level and criminal history category in order to reach the applicable

advisory guidelines range. Mr. Medrano’s attorney expressly agreed to the

court’s calculations. See Aplt. App., tab 5 at 42. The court then sentenced Mr.

Medrano to a reasonable sentence within that range. This process was in full

accord with Booker and Magallanez.

      In the alternative, Mr. Medrano contends his sentence is nevertheless

unlawful because the district court treated the guidelines as mandatory in setting

his sentence. He does not argue that his post-Booker sentence is unreasonable.

See Booker, 125 S. Ct. at 767 (“The courts of appeals review sentencing decisions

for unreasonableness.”). Rather, he posits that the district court erred by

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complying with the notes in the guidelines’ Drug Quantity Table. Note B directs

that “in the case of a mixture or substance containing . . . methamphetamine, use

the offense level determined by the entire weight of the mixture or substance, or

the offense level determined by the weight of the . . . methamphetamine (actual),

whichever is greater.” U.S.S.G. § 2D1.1 n.B. The actual weight of the

methamphetamine in Mr. Medrano’s case was 34.2 grams, while the weight of the

entire mixture containing the methamphetamine was 389.3 grams. In accordance

with Note B, the district court calculated Mr. Medrano’s offense level based on

the larger amount. Mr. Medrano argues that because the guidelines are now

advisory, the district court was wrong to comply with the directions provided in

Note B. In essence, he appears to contend that the district court was at liberty to

disregard the offense level calculation methodology outlined in the guidelines and

arrive at a lower offense level for Mr. Medrano by calculating his offense level

based on the actual weight of the methamphetamine rather than the entire weight

of the methamphetamine mixture.

      Again, Mr. Medrano’s argument exposes his misconception of post-Booker

sentencing. While the ultimate guidelines imprisonment range is now advisory,

see Booker, 125 S. Ct. at 756–57, the process of determining the correct guideline

range is the same as it was before Booker. Id. at 767 (“The district courts, while

not bound to apply the Guidelines, must consult those Guidelines and take them


                                         -5-
into account when sentencing.”); see also Magallanez, 408 F.3d at 685 (“district

courts are still required to consider Guideline ranges”); United States v. Mares,

402 F.3d 511, 519 (5th Cir. 2005) (“[The] duty to ‘consider’ the Guidelines will

ordinarily require the sentencing judge to determine the applicable Guideline

range even though the judge is not required to sentence within that range. The

Guideline range should be determined in the same manner as before

Booker/Fanfan.”). The district court did not err in relying on Note B to the Drug

Quantity Table to determine Mr. Medrano’s guideline offense level. See United

States v. Brooks, 161 F.3d 1240, 1248 (10th Cir. 1998) (“[N]otes or commentary

to the sentencing guidelines are considered binding authority unless either

violative of the Constitution or a federal statute, or clearly inconsistent with the

guideline commentary [it] purports to explain.”).

      We AFFIRM.

                                        SUBMITTED FOR THE COURT

                                        Stephanie K. Seymour
                                        Circuit Judge




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