                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         MAY 17 2005
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 04-4118
          v.                                    (D.C. No. 2:04-CR-49-PGC)
 SILVESTER PEREZ-AMAYA aka                                (D. Utah)
 Marcos Servantes aka Silvestre Perez
 aka Israel Perez,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Defendant Silvester Perez-Amaya pleaded guilty to the charge of illegal

reentry by a deported alien. See 8 U.S.C. § 1326. On February 5, 2004, before

Defendant’s plea agreement, the Government filed a notice of sentencing

enhancement stating that Defendant’s sentence would be enhanced under


      *
        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 Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered 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not binding precedent, except under the doctrines of law of the case, res judicata,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 10th Cir. R. 36.3.
§ 1326(b) because he had a prior felony drug conviction in California. The plea

agreement, signed by Defendant and his counsel, acknowledged the truth of the

following statement:

      5.     My previous convictions include, but may not be limited to,
             the following:

             On 9/18/92, Superior Court, Ventura District Court, Ventura
             County, Convicted of Distribution of a Controlled Substance,
             case number CR-34205; On 8/22/94, Superior Court, Ventura
             District Court, Ventura County, convicted of Distribution of a
             Controlled Substance, case number CR-30350.

R. Vol. I, Doc. 12, at 8-9. At his sentencing hearing Defendant again admitted

both of the prior convictions.

      The Presentence Report (PSR) concluded that Defendant’s base-offense

level of eight—the level for violating § 1326(a)—was subject to a 16-level

enhancement because of the prior felony drug conviction. See U.S. Sentencing

Guidelines Manual § 2L1.2(b)(1)(A)(i) (2003). It also concluded that Defendant

had 11 total criminal history points and thus belonged in category V. Two points

were included in the 11-point total because Defendant was on probation at the

time he committed the charged offense. See USSG § 4A1.1(d).

      Defendant did not tender written objections to the sentencing

recommendation in the PSR, but he raised an objection at the sentencing hearing

to the two-point addition. The court overruled the objection and accepted the

PSR’s recommendation. The Court also denied Defendant’s motion for downward

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departure based on over-representation of his criminal history, stating: “[T]he

facts of this case do not justify such a departure. It’s not outside the heartland or

not outside the standard kind of case that’s covered by a criminal history category

V that would be the most [felicitous] choice of words here.” R. Vol. III at 20-21.

The court sentenced Defendant at the bottom of the applicable guidelines range:

70 months’ imprisonment followed by 36 months of supervised release.

      On appeal Defendant’s counsel filed an Anders brief, see Anders v.

California, 386 U.S. 738 (1967), and moved for leave to withdraw as counsel. In

compliance with Anders, counsel provided Defendant with a copy of his appellate

brief and Defendant filed a pro se reply brief raising Blakely v. Washington, 124

S. Ct. 2531 (2004). Defendant’s counsel also filed a supplemental brief after the

Supreme Court handed down United States v. Booker, 125 S. Ct. 738 (2005).

      The briefs raise three objections to the sentence. Defendant first argues

that the two-point addition to his criminal history, added because he committed

the charged offense while on probation, was incorrectly applied. He also argues

that in light of Booker the use of mandatory guidelines in determining his

sentence was plain error. Finally, Defendant argues that the district court erred

when it denied his oral motion for downward departure.

      The first argument is foreclosed by circuit precedent. Defendant asserts

that the charged offense—illegal reentry into the United States—was committed


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when he crossed the border. The 36-month probation underlying the enhancement

was imposed by a California court on September 25, 2002, which was after the

illegal reentry. Defendant argues that he was not on probation at the time he

committed the charged offense of illegal reentry. But this argument fails because

the offense of illegal reentry as defined by § 1326(a) is a continuing offense and

not necessarily complete at the time of the entry.

      The plain language of § 1326(a) establishes that a previously
      deported alien who illegally enters and remains in the United States
      can violate the statute at three different points in time, namely, when
      the alien (1) enters, (2) attempts to enter, or (3) is at any time found
      in the United States. . . . For an alien to be found, the government
      must have knowledge of the illegality of his presence, through the
      exercise of diligence typical of law enforcement authorities.

United States v. Rosales-Garay, 283 F.3d 1200, 1202-1203 (10th Cir. 2002)

(internal quotation marks and brackets omitted). The federal authorities found

Defendant in the United States on December 10, 2003, well within his 36-month

probation period.

      Defendant’s second argument—that sentencing under a mandatory

guidelines regime is itself plain error—also fails. We recently noted that although

mandatory application of the guidelines is Booker error, it is not plain error

requiring a remand for resentencing unless the error was “a particularly egregious

one that would result in a miscarriage of justice or otherwise call the judiciary

into disrepute unless we remanded.” United States v. Gonzalez-Huerta, No.


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04-2045, slip. op. at 24 (10th Cir. Apr. 8, 2005). In Gonzalez-Huerta the

defendant pleaded guilty to illegal reentry by a deported alien following an

aggravated felony, the same crime at issue in this case. Id. at 2-3. He appealed

his sentence, arguing that the mandatory application of the guidelines was

reversible plain error. Id. at 4. We held that the mandatory application of the

guidelines was neither “particularly egregious” nor a “miscarriage of justice”

because the resulting sentence was within the national norms established by the

guidelines and the record was devoid of any evidence indicating a lower sentence

was appropriate. Id. at 20-22. Because Defendant, like the Gonzalez-Huerta

defendant, admitted to all the facts underlying his sentence, his case involves non-

constitutional Booker error. The record likewise lacks evidence that indicates a

lower sentence is appropriate. Defendant’s case is thus indistinguishable from

Gonzalez-Huerta and we conclude that he has failed to show that the mandatory

application of the guidelines is plain error in his case.

      Finally, Defendant claims that the district court erred when it denied his

motion for downward departure. Denying the motion, the court stated: “I’m

aware that I have the discretion to depart downward if the facts show that

downward departure is appropriate, and I don’t see that this case is outside of the

heartland.” R. Vol. III at 17. Pre-Booker we had jurisdiction to review a district

court’s refusal to depart downward only when the district court stated that it had


                                           -5-
no authority to depart. United States v. Dias-Ramos, 384 F.3d 1240, 1242-43

(10th Cir. 2004). The district court’s decision to deny the motion after

acknowledging its discretion to grant it would have been unreviewable. Even if

Booker now requires us to review the failure to depart for reasonableness, the

district court’s decision easily meets that standard.

      Defendant’s sentence is AFFIRMED. Counsel’s Anders motion to

withdraw is GRANTED.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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