                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    February 20, 2008
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                            FOR THE TENTH CIRCUIT




    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 07-4054
                                                 (D.C. No. 2:04-CR-578-PGC)
    CARLOS ILDEBRANDO                                      (D. Utah)
    AVALOS-ESTRADA,

                Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before BRISCOE, BALDOCK, and LUCERO, Circuit Judges.


         Carlos Ildebrando Avalos-Estrada pleaded guilty to illegally reentering the

United States after having been previously removed. He was sentenced to seventy

months in prison and ordered removed upon completion of his term of

imprisonment. He now appeals his sentence, claiming it to be in violation of

United States v. Booker, 543 U.S. 220 (2005). We affirm.


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                          I

      Mr. Avalos-Estrada pleaded guilty to a one-count indictment charging him

with illegal reentry in violation of 8 U.S.C. § 1326. According to the stipulated

facts, Mr. Avalos-Estrada previously had been removed from the United States on

December 3, 2002, reentered this country without authorization, and was found

present in Utah on June 21, 2004. His presentence report calculated an applicable

sentencing range under the United States Sentencing Guidelines of 70 to 87

months. Although he moved for a downward departure, Mr. Avalos-Estrada did

not object to the calculated sentencing range. After a hearing, the district court

denied his motion for downward departure and applied the guidelines in a

mandatory fashion, sentencing him to seventy months in prison. Now on appeal,

Mr. Avalos-Estrada contends the district court’s mandatory application of the

sentencing guidelines contravenes the Supreme Court’s decision in Booker and

warrants reversal. 1

1
       The district court originally entered final judgment in this case on
December 20, 2004. Mr. Avalos-Estrada’s attorney never filed a timely notice of
appeal, however. Consequently, on February 18, 2005, Mr. Avalos-Estrada
moved pro se to file an untimely appeal, averring that despite his explicit
instructions, his attorney failed to file the notice of appeal. The motion was
referred to a magistrate judge who, based on the parties’ stipulation, concluded
that Mr. Avalos-Estrada’s attorney had in fact failed to file the appeal as directed
and thereby rendered ineffective assistance of counsel. With
Mr. Avalos-Estrada’s consent, the magistrate judge recommended that his motion
be construed as a motion to vacate, set aside, or correct sentence under 28 U.S.C.
§ 2255 and that the motion be granted. The district court judge adopted the
magistrate judge’s report and recommendation and concluded that
                                                                        (continued...)

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                                          II

      In Booker, the Supreme Court identified two potential types of error that a

sentencing court could have made prior to that decision: constitutional and

non-constitutional. United States v. Gonzalez-Huerta, 403 F.3d 727, 731-32

(10th Cir. 2005) (en banc). As is relevant here, non-constitutional error occurs

when a court applies the sentencing guidelines in a mandatory, rather than

discretionary, fashion. Id. at 732. The government acknowledges that

non-constitutional Booker error occurred at sentencing. Yet because

Mr. Avalos-Estrada did not preserve the issue below, we review for plain error.

United States v. Bowen, 437 F.3d 1009, 1021 (10th Cir. 2006).

      To establish plain error, Mr. Avalos-Estrada must show “(1) error, (2) that

is plain, which (3) affects substantial rights, and which (4) seriously affects the

fairness, integrity, or public reputation of judicial proceedings.”

Gonzalez-Huerta, 403 F.3d at 732. Non-constitutional Booker error clearly

satisfies the first two prongs of plain error analysis. Id. To satisfy the third

prong, however, Mr. Avalos-Estrada “must show a reasonable probability that, but


1
 (...continued)
Mr. Avalos-Estrada was entitled to pursue a direct appeal. To effectuate that
remedy, the district court vacated and reentered its judgment in accord with
United States v. Snitz, 342 F.3d 1154, 1159 (10th Cir. 2003), so as to allow
Mr. Avalos-Estrada to file a timely appeal. The court entered its amended
judgment on March 1, 2007, and Mr. Avalos-Estrada filed his notice of appeal on
March 5, 2007. The appeal is now properly before us for adjudication on the
merits.

                                         -3-
for the error claimed, the result of the proceeding would have been different.”

United States v. Najar, 451 F.3d 710, 721 (10th Cir.) (internal quotation marks

omitted), cert. denied, 127 S.Ct. 542 (2006).

      Mr. Avalos-Estrada claims that the result of his proceeding would have

been different because the district court wished to impose a shorter sentence but

believed itself bound by the “mandatory Guideline scheme.” Aplt. Br. at 7. But

the transcript from the sentencing hearing indicates that when given the

opportunity to impose a lower sentence, the court declined to do so because the

facts in the case warranted a sentence within the calculated guideline range:

      I’m going to deny the motion for a downward departure. I’m aware
      that I have the discretion to depart downward, but I just don’t think
      that the facts support it here. I agree with [defense counsel] that this
      is an awfully long sentence for what’s basically an illegal reentry,
      but when you break it down, the length of it is attributable to the
      criminal history category V, and when you look at how the
      Guidelines arrive at that criminal history category V, I’m not sure
      there is anything unusual here. . . . There is [] the additional points
      for the defendant having come back to the United States so quickly
      after having been deported, and that’s happened multiple times. So I
      tend to agree, and I’ve said it before, I think the Guidelines are a bit
      too high on immigration offenses, but I’m not sure that this particular
      offense is unusual, given the vast range of offenses that I see here.

R., Vol. II at 7. Given these remarks, we cannot say the court’s mandatory

application of the guidelines affected the outcome of the proceeding.

      Still, even if Mr. Avalos-Estrada could meet the third prong of plain error

review, he cannot satisfy the “demanding” fourth prong, which requires that he

show our failure to notice the error would be “particularly egregious” and result

                                         -4-
in a “miscarriage of justice.” United States v. Dazey, 403 F.3d 1147, 1178

(10th Cir. 2005) (internal quotation marks omitted). Most cases involving

non-constitutional error will be unable to satisfy this burden, Trujillo-Terrazas,

405 F.3d 814, 820-21 (10th Cir. 2005), and Mr. Avalos-Estrada’s is no exception.

His is a “run of the mill” case, id. at 820, lacking a constitutional dimension,

cf. Dazey, 403 F.3d at 1178, and outside the “zone of speculation and conjecture”

of what might have happened post-Booker, United States v. Labastida-Segura,

396 F.3d 1140, 1143 (10th Cir. 2005).

      Accordingly, the judgment of the district court is AFFIRMED.


                                                     Entered for the Court



                                                     Bobby R. Baldock
                                                     Circuit Judge




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