                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            December 8, 2005
                                  TENTH CIRCUIT
                                                                              Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                          No. 04-4196
          v.                                                  (D. Utah)
 JOEL MOSQUEDA-RAMIREZ,                            (D.C. No. 2:04-CR-135-DAK)

               Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before HENRY, HARTZ, and TYMKOVICH, Circuit Judges.


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

unanimously that oral argument would not materially assist the determination of

this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      In June 2004, Joel Mosqueda-Ramirez pleaded guilty to one count of

possession with intent to distribute 50 grams or more of a mixture of substance

containing methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.


      *
        This order and judgment is not binding precedent, except under the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 10th Cir. R. 36.3.
§ 2. The district court examined a toxicology report and found that he possessed

165.3 grams of “actual” methamphetamine. This amount was different from and

greater than the amount admitted in the plea agreement. The district court

subsequently sentenced Mr. Mosqueda-Ramirez to 87 months’ imprisonment. It

also stated it would an impose an identical “back up” sentence in case the

Guidelines were invalidated. Mr. Mosqueda-Ramirez claims that the district court

violated his Fifth Amendment right to an indictment and his Sixth Amendment

right to a jury trial by relying on its own factual determinations of drug quantity

to enhance his sentence. We exercise jurisdiction under 28 U.S.C. § 1291. In

light of the district court’s identical discretionary sentence, we conclude that the

sentencing error was harmless, and therefore affirm the district court’s sentence.



                                I. BACKGROUND

      Mr. Mosqueda-Ramirez stipulated in his plea agreement that “[o]n March 2,

2004, [he] knowingly and intentionally possessed with intent to distribute more

than 50 grams of a mixture or substance containing methamphetamine.” Rec. vol.

1, doc. 33, at 4 ¶ 12(a). The offense to which he pleaded guilty carries a

mandatory minimum sentence of 5 years’ imprisonment, and a statutory maximum

of 40 years’ imprisonment. See 21 U.S.C. § 841(b)(1)(B). The pre-sentence

report (“PSR”) recommended a base offense level of 34, relying on a toxicology


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report that indicated a total drug mixture of 165.3 grams of actual

methamphetamine. See U.S.S.G. § 2D1.1(c)(3). Citing Blakely v. Washington,

542 U.S. 296 (2004), Mr. Mosqueda-Ramirez objected to calculating the base

offense level using any amount or purity of methamphetamine in excess of or

different than the 50 grams of mixture to which he pleaded guilty.

      At sentencing, the district court stated that “until the Tenth Circuit or the

Supreme Court says that Blakely applies to the Federal Guidelines, my view is

that it does not. But I give a back-up sentence under the statute of convictions,

which not surprisingly is usually about the same sentence under the guidelines.”

Rec. vol. III, at 3 (Sentencing Hr’g, dated Aug. 17, 2004). The district court

started with a base offense level of 34, correlated to the 165.3 grams of actual

methamphetamine, and reduced the offense level to 29 after applying downward

adjustments under the “safety valve,” see U.S.S.G. § 5C1.2, and for acceptance of

responsibility, see U.S.S.G. § 3E1.1. Mr. Mosqueda-Ramirez reaffirmed his

Blakely objection to the court’s calculation of his base offense level.

      With a criminal history category I and adjusted offense level of 29, the

Guidelines range was 87 to 108 months. The district court sentenced him to 87

months’s imprisonment, followed by 48 months’ supervised release. After

sentencing Mr. Mosqueda-Ramirez under the Guidelines, the district court stated

that “[t]he back-up sentence under the statute is also 87 months with 48 months


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supervised release.” Rec. vol. III, at 12.



                                 II. DISCUSSION

       On appeal, Mr. Mosqueda-Ramirez claims that the district court violated

his Fifth Amendment right to an indictment and his Sixth Amendment right to a

jury trial.

A.     Fifth Amendment claim

       We first quickly dispense with Mr. Mosqueda-Ramirez’s alleged Fifth

Amendment violation from an enhancement based on judge-found facts not

alleged in the indictment. The Supreme Court held in United States v. Cotton,

535 U.S. 625, 632 (2002) that a sentencing court violates the Fifth Amendment

when it relies on a fact not alleged in the indictment to sentence a defendant

above the statutory maximum. Here, the district court did not sentence Mr.

Mosqueda-Ramirez above the statutory maximum, and thus did not commit Fifth

Amendment error.

B.     Sixth Amendment claim

       Mr. Mosqueda-Ramirez next contends that the district court violated his

rights under the Sixth Amendment when it sentenced him based on facts not in the

indictment, stipulated, or proven to a jury. In United States v. Booker, 125 S. Ct.

738 (2005), the Supreme Court stated that sentencing courts may commit two


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types of error when applying the then-mandatory Guidelines: constitutional and

non-constitutional error. Constitutional Booker error occurs when a court

“rel[ies] upon judge-found facts, other than those of prior convictions, to enhance

a defendant’s sentence mandatorily,” in violation of the Sixth Amendment.

United States v. Gonzalez-Huerta, 403 F.3d 727, 731 (10th Cir. 2005) (en banc).

A court commits non-constitutional Booker error when it “appl[ies] 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.

      The district court committed constitutional error when it enhanced Mr.

Mosqueda-Ramirez’s sentence based on its finding of drug quantity. Absent

judge-found facts, his base offense level for at least 50 grams of a

methamphetamine mixture would be 26. See U.S.S.G. § 2D1.1(c)(7). The

increase from a base offense level of 26 to 34 resulted from a finding of fact not

admitted or determined by a jury, in violation of the Sixth Amendment.

      The government maintains that the sentencing error was harmless because

the district court announced an identical discretionary sentence, and such an

alternative sentence leaves no room for speculation that the court would have

imposed a more lenient sentence had it treated the Guidelines only as advisory.


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However, according to Mr. Mosqueda-Ramirez, “[t]he trial court never

entertained discretion in sentencing [him], nor provided the opportunity to him to

present and argue factors outside the Guidelines which might effect a

‘discretionary’ sentencing.” Aplt’s Reply Br. at 3.

      Mr. Mosqueda-Ramirez preserved his Blakely objection below, and we thus

review his constitutional sentencing error for harmlessness. See United States v.

Labastida-Segura, 396 F.3d 1140, 1142-43 (10th Cir. 2005) (concluding that a

Blakely objection sufficiently preserves a claim of error under Booker). “Any

error, defect, irregularity, or variance which does not affect substantial rights

must be disregarded.” F ED . R. C RIM . P. 52(a). “The burden of proving that an

error does not affect substantial rights is upon the beneficiary of the error–here,

the government. If the error is of constitutional magnitude, as it is here, the

government is required to prove the error was harmless beyond a reasonable

doubt.” United States v. Lang, 405 F.3d 1060, 1065 (10th Cir. 2005) (internal

quotation marks omitted).

      In Labastida-Segura, we concluded that a non-constitutional Booker error

was not harmless when a defendant was sentenced at the bottom of the Guidelines

range and the court did not indicate how it would impose a discretionary sentence

“given the new legal landscape.” 396 F.3d at 1143. However, if the district court

proposed an alternative sentence under a discretionary Guidelines scheme, a


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remand for resentencing may not be necessary. For example, in United States v.

Serrano-Dominguez, 406 F.3d 1221, 1223 (10th Cir. 2005), “the district court

announced an alternative sentence, which applied the methodology suggested by

Booker” and considered the § 3553(a) factors. We deemed the non-constitutional

error there to be harmless because “[t]he district court applied the sentencing

methodology suggested in Booker and concluded that even if the Guidelines were

not mandatory [the defendant] would receive the same sentence.” Id. at 1224.

      The holding of Serrano-Dominguez is instructive here, and we conclude

that the district court’s error in sentencing Mr. Mosqueda-Ramirez, even though

of a constitutional magnitude, is harmless beyond a reasonable doubt. See United

States v. McCleary, No. 04-6316, 2005 WL 2746748 (10th Cir. Oct. 25, 2005)

(concluding a constitutional sentencing error was harmless when the district court

imposed an identical alternative sentence); see also United States v. Lee, 427 F.3d

881, 892 (11th Cir. 2005) (finding that “the government has carried its burden of

showing that the Booker constitutional error was harmless beyond a reasonable

doubt” where “the district court explicitly stated that it would have given [the

defendant] the same sentence whether the Guidelines were mandatory or

advisory” and “the district court expressly considered the 18 U.S.C. § 3553(a)

sentencing factors”); United States v. Carasa-Vargas, 420 F.3d 733, 737 (8th Cir.

2005) (concluding that a constitutional sentencing error under Booker was


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harmless beyond a reasonable doubt when the district court proposed an identical

sentence “in the event the enhancement or the Guidelines in their entirety were

held inapplicable” and “the district court specifically considered the sentencing

factors set forth in 18 U.S.C. § 3553(a)(1)-(7)”).

      The district court provided Mr. Mosqueda-Ramirez with an identical “back-

up sentence under the statute” in case “the Tenth Circuit or the Supreme Court

says that Blakely applies to the Federal Guidelines.” Rec. vol. III, at 3. As a

result, we are not in the “zone of speculation and conjecture,” as we were in

Labastida-Segura, 396 F.3d at 1143, and “we do not need to read any tea leaves

to determine what the district court would do on remand,” Serrano-Dominiguez,

406 F.3d at 1223. “The district court’s alternative sentence makes clear that

either in the absence of the Guidelines or in an advisory Guidelines system, the

district court would have imposed on [the defendant] the same sentence as the

mandatory Guidelines required.” United States v. Christopher, 415 F.3d 590, 594

(6th Cir. 2005).

      Finally, we reject Mr. Mosqueda-Ramirez’s argument that the district court

erred by not expressly considering the factors outlined in 18 U.S.C. § 3553(a)

when it announced a back-up sentence. Even prior to Booker, the Sentencing

Reform Act instructed judges to consider the factors outlined in 18 U.S.C. §

3553(a) when imposing sentences. See 18 U.S.C. § 3553(a) (“The court, in


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determining the particular sentence to be imposed, shall consider [those

factors].”); see also United States v. Rines, 419 F.3d 1104, 1106 (10th Cir. 2005)

(noting, in a case where the district court imposed an identical discretionary

sentence, that “[i]t is true that the district court did not march through § 3553(a)’s

sentencing factors, but we have never imposed such a requirement”).

      Further, the district court adopted many of the sentencing recommendations

of the PSR, which had analyzed relevant factors set forth in 18 U.S.C. § 3553(a).

The PSR provided information about Mr. Mosqueda-Ramirez’s personal and

family history, educational and vocational skills, employment record, and ability

to pay. Rec. vol. IV, at 7-8. It also explained the sentencing options regarding

custody, supervised release, probation, fines, and restitution. Id. at 8-10.

Furthermore, at sentencing, the district court waived a fine because “the

defendant does not have the ability to pay,” ordered payment of a special

assessment fee of $100, and recommended incarceration near the defendant’s

family in Los Angeles. Rec. vol. III, at 12.



                                III. CONCLUSION

      Accordingly, we AFFIRM Mr. Mosqueda-Ramirez’s sentence.

                                                Entered for the Court,




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       Robert H. Henry
       Circuit Judge




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