                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         MAY 4 2005
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 04-4145
          v.                                             (D. Utah)
 ANTONIO PINEDA-RODRIGUEZ,                     (D.C. NO. 03-CR-758-DKW)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, ANDERSON, and BALDOCK, Circuit
Judges.




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

unanimously that oral argument would not materially assist in 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       This order and judgment is not binding precedent, except under the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.
      Defendant-Appellant Antonio Pineda-Rodriguez pled guilty to two counts

of possession of a firearm by a restricted person, in violation of 18 U.S.C.

§ 922(g)(1) and (9), and one count of illegal reentry following deportation, in

violation of 8 U.S.C. § 1326(a). He was sentenced pursuant to the United States

Sentencing Commission, Guidelines Manual (“USSG”), to eighty-four months’

imprisonment, the low end of the Guideline range, followed by thirty-six months

of supervised release.

      In calculating the Guideline sentencing range, the district court, as then

required by USSG §4A1.1(d) and (e), added three criminal history points to

Pineda-Rodriguez’s criminal history because Pineda-Rodriguez committed the

instant offenses while on court supervision for a prior offense and within two

years of having been released from custody for a different prior offense. 1 This

had the effect of increasing his criminal history category from IV to V. 2 During

      1
          USSG §4A1.1(d) and (e) provide as follows:

      (d)      Add 2 points if the defendant committed the instant offense
               while under any criminal justice sentence, including probation,
               parole, supervised release, imprisonment, work release, or
               escape status.
      (e)      Add 2 points if the defendant committed the instant offense
               less than two years after release from imprisonment on a
               sentence counted under (a) or (b) or while in imprisonment or
               escape status on such a sentence. If 2 points are added for
               item (d), add only 1 point for this item.
      2
          The applicable Guideline range was based upon a combined adjusted
                                                                    (continued...)

                                          -2-
the plea proceedings Pineda-Rodriguez admitted and described his two prior

convictions. 3 The district court, however, derived the dates and sentences relating

to those prior convictions from the Presentence Report (“PSR”) prepared by the

probation office, which in turn referenced records from the Utah state courts.

Those dates and sentences on their face established the “less than two years after

release” and “while [on] . . . probation” facts related to the two admitted prior

convictions. Pineda-Rodriguez did not object to any part of the PSR and he has

never denied that he committed the instant offense while on probation or within

two years of having been released from custody for a prior offense; he simply

argues those facts should have been alleged in the indictment and proved to a

jury.




       (...continued)
        2

offense level of 26, which was then adjusted downward 3 levels for acceptance of
responsibility, resulting in a total offense level of 23 which, with a criminal
history category of V, yielded a Guideline range of 84 to 105 months. The
maximum statutory penalty for his offenses was ten years. 18 U.S.C. § 924(a)(2);
see also 8 U.S.C. § 1326(a) (providing a maximum penalty of two years). Thus,
the Guideline sentence was less than that permitted by statute.

       In his “Statement of Defendant in Advance of Guilty Plea” Pineda-
        3

Rodriguez admitted that at the time of the instant offenses, he “had been
convicted of a felony offense (Domestic Violence in the Presence of a Child, a
Third Degree Felony, Case No. 011912628, on January 14, 2002) and [he] had
been convicted of a domestic-violence misdemeanor offense (e.g., Assault on a
Pregnant Person, a Class A Misdemeanor, Case No. 011902888, on December 14,
2001) in Third District Court, State of Utah.” Statement at 4-5, R. Vol. I at doc.
13.

                                         -3-
      On appeal, relying upon Blakely v. Washington, 124 S. Ct. 2531 (2004), 4

Pineda-Rodriguez argues for the first time that his Sixth Amendment rights were

violated because the two facts described above (the length of probation and the

date of release from custody, both relating to Pineda-Rodriguez’s admitted prior

convictions) were found by the district court judge rather than charged in the

indictment and found by a jury or admitted by the defendant. After initial

appellate briefing, Pineda-Rodriguez sought and was granted the right to brief the

effect on this case of the Supreme Court’s subsequent decision in United States v.

Booker, 125 S. Ct. 738 (2005). Thus, he also argues that, regardless of any Sixth

Amendment error, it was plain error under Booker for the district court to treat

the Guidelines as mandating the sentence imposed, and that error requires a

remand for resentencing.



                                  DISCUSSION

      Blakely and Booker have established that, for purposes of the Guidelines,

the Sixth Amendment requires that “[a]ny fact (other than a prior conviction)



      4
       When Pineda-Rodriguez raised Blakely before this court, the Supreme
Court had not yet issued United States v. Booker, 125 S. Ct. 738 (2005).
However, raising a Sixth Amendment Blakely argument was sufficient to invoke
the Sixth Amendment holding in Booker as well (applying Blakely’s Sixth
Amendment analysis to the federal Guidelines). Accordingly, we apply the Sixth
Amendment analysis of both Booker and Blakely to this case.

                                        -4-
which is necessary to support a sentence exceeding the maximum authorized by

the facts established by a plea of guilty or a jury verdict must be admitted by the

defendant or proved to a jury beyond a reasonable doubt.” Booker, 125 S. Ct. at

756. See United States v. Gonzalez-Huerta, No. 04-2045, 2005 WL 807008, at *1

(10th Cir. Apr. 8, 2005) (en banc). Booker further held that the Guidelines are

advisory rather than mandatory. The Court’s decision applies to all cases on

direct review. Booker, 125 S. Ct. at 769.

      To resolve this appeal, we must address the following questions: (1) does

the “fact of a prior conviction” for purposes of Blakely and Booker include the

fact of the date and sentence of a prior conviction, and findings necessarily

flowing therefrom (e.g., whether the instant offenses were committed within two

years of release from custody on a prior conviction and/or while the defendant

was under court supervision from a prior conviction); and (2) did the district court

commit plain error when it sentenced Pineda-Rodriguez, pre-Booker, erroneously

applying the Guidelines as mandatory. We affirm Pineda-Rodriguez’s sentence.



      I. Fact of Prior Conviction

      Pineda-Rodriguez argues that, under Blakely and Booker, the government

must charge in an indictment or prove to a jury that the instant offenses were

committed while he was under court supervision for a prior offense or within two


                                         -5-
years of his release from custody for a prior offense. We disagree, concluding

that those facts are within the exception to the Blakely/ Booker rule for the “fact

of a prior conviction.” Blakely, 124 S. Ct. at 2536 (quoting Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000)).

      We have recently held that “Booker . . . and Shepard v. United States, 125

S. Ct. 1254 (2005), do not require the government to charge in an indictment or

prove to a jury either the existence of prior convictions or their classification as

‘violent felonies.’” United States v. Moore, 401 F.3d 1220, 1221 (10th Cir.

2005). In reaching that conclusion, we noted that the Supreme Court in

Almendarez-Torres v. United States, 523 U.S. 224 (1998), held that because

recidivism “is a traditional, if not the most traditional, basis for a sentencing

court’s increasing an offender’s sentence,” id. at 243, and “as typical a sentencing

factor as one might imagine,” id. at 230, there is no constitutional requirement for

the government to charge an earlier conviction in an indictment. The Supreme

Court has also emphasized the importance of shielding the jury from evidence of

prior crimes for the obvious reason that “the introduction of evidence of a

defendant’s prior crimes risks significant prejudice.” Id. at 235; see also Moore,

401 F.3d at 1223. And as we further observed in Moore, the Supreme Court has




                                          -6-
repeatedly affirmed its holding in Almendarez-Torres, most recently in Booker

and Shepard. 5 See Moore, 401 F.3d at 1223-24.

      Pineda-Rodriguez challenges the scope of that holding. In Moore, we cited

approvingly other circuit court decisions concluding that, for purposes of 18

U.S.C. § 924(e)’s requirement that a defendant’s three previous convictions be for

violent felonies “committed on occasions different from one another,” the

“different occasions” finding falls within the “fact of a prior conviction” for

Apprendi/Blakely/Booker purposes. Thus, the “facts” of the “different occasions”

need not be alleged in the indictment, or admitted by the defendant or submitted

to a jury for proof beyond a reasonable doubt. See United States v. Burgin, 388

F.3d 177 (6th Cir. 2004), cert. denied, 73 U.S.L.W. 3556 (U.S. Mar. 21, 2005)

(No. 04-8785); United States v. Morris, 293 F.3d 1010 (7th Cir. 2002); United

States v. Santiago, 268 F.3d 151 (2d Cir. 2001). In Santiago, the Second Circuit

noted that the “determination of ‘the fact of a prior conviction’ implicitly entails


      5
        We note that Shepard has, however, further restricted the “fact of a prior
conviction” exception. The Court in Shepard held that, for purposes of
determining whether a prior burglary conviction qualifies as a “violent felony”
under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), “a later
court determining the character of an admitted burglary is generally limited to
examining the statutory definition, charging document, written plea agreement,
transcript of plea colloquy, and any explicit factual finding by the trial judge to
which the defendant assented.” Shepard, 125 S. Ct. at 1257. A court may not
look at police reports or complaint applications to make that determination. The
Court in Shepard did not, however, overrule Almendarez-Torres and its exception
for facts of a prior conviction.

                                         -7-
many subsidiary findings.” Santiago, 268 F.3d at 156; see also United States v.

Kempis-Bonola, 287 F.3d 699, 703 (8th Cir. 2002) (noting its agreement with the

Santiago court “that it is entirely appropriate for judges to have ‘the task of

finding not only the mere fact of previous convictions but other related issues as

well’”) (quoting Santiago, 268 F.3d at 156). We conclude that, among those

“subsidiary findings” are such things as the duration of a term of court

supervision following a prior conviction, or the date the defendant was released

from custody following a prior conviction. Like the “fact” of a conviction itself,

those ancillary “facts” are merely aspects of the defendant’s recidivist potential,

they are easily verified, and their application for purposes of enhancing a sentence

under USSG §4A1.1 requires nothing more than official records, a calendar, and

the most self-evident mathematical computation. See United States v. Mateo, 271

F.3d 11, 16 (1st Cir. 2001) (“[W]e hold that in determining whether to add

criminal history points under USSG § 4A1.1(d), a sentencing court ordinarily is

not required to look beyond the face of the state-court record.”). We therefore

conclude that the district court did not err when it added (whether using a

preponderance of the evidence or a beyond a reasonable doubt standard) three

criminal history points pursuant to §4A1.1(d) and (e).

      And, even assuming arguendo that the district court did err, we conclude

that such an error was far from plain, since there was no definitive statement on


                                          -8-
whether the fact of a prior conviction included such administrative ancillary

details as the date of any court supervision following it or the length of sentence

imposed.



      II. Non-Constitutional Booker Error

      The district court sentenced Pineda-Rodriguez before Booker and therefore

erroneously viewed the Guidelines as mandatory. Pineda-Rodriguez has filed a

supplemental brief arguing that sentencing based upon mandatory Guidelines

constitutes plain error under Booker, necessitating a remand for resentencing.

See Booker, 125 S. Ct. at 769 (“[W]e expect reviewing courts to apply ordinary

prudential doctrines, determining, for example, whether the issue was raised

below and whether it fails the ‘plain-error’ test.”).

      Because Pineda-Rodriguez only challenges the use of facts relating to his

prior convictions, which we held above did not violate his Sixth Amendment

rights, Pineda-Rodriguez’s remaining argument presents a non-constitutional

Booker error. See United States v. Gonzalez-Huerta, No. 04-2045, 2005 WL

807008, at *2 (en banc) (distinguishing between “constitutional Booker error” and

“non-constitutional Booker error”); United States v. Trujillo-Terrazas, No.

04-2075, 2005 WL 880896, at *2 (10th Cir. Apr. 13, 2005). To establish plain

error, Pineda-Rodriguez must demonstrate there is “(1) error, (2) that is plain,


                                          -9-
which (3) affects substantial rights, and which (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Gonzalez-Huerta, 2005

WL 807008, at *3. The district court’s error in sentencing Pineda-Rodriguez

under mandatory Guidelines is plain. Id.

      However, even though plain error occurred, the burden is on Pineda-

Rodriguez to show that the error affected his substantial rights. United States v.

Vonn, 535 U.S. 55, 63 (2002); Gonzalez-Huerta, 2005 WL 807008, at *3. To

establish that the mandatory application of the Guidelines affected his substantial

rights, Pineda-Rodriguez must show a “reasonable probability” that the defects in

his sentencing proceeding altered the result of that proceeding. Id. (quoting

United States v. Dominguez Benitez, 542 U.S. 74, 124 S. Ct. 2333, 2339 (2004)).

“[Pineda-Rodriguez] therefore bears the burden to convince this Court, based on

the record on appeal, that the error affected his substantial rights.” Id.

      Pineda-Rodriguez initially argues that the district court’s error was

structural and that demonstrates that his substantial rights were affected. We

have recently concluded that “non-constitutional Booker error does not constitute

structural error.” Id. at *4. Aside from that argument, Pineda-Rodriguez points

to nothing specific in the record which suggests that there is a reasonable

probability that the outcome of his sentencing proceeding would have been

different had the district court operated under a discretionary sentencing scheme,


                                         -10-
other than the fact that he was sentenced at the bottom of the Guideline range,

with the district court’s observation that that was “the best he can do.” Tr. of

Sentencing Hr’g at 7, R. Vol. III. We have recently held that, to show a non-

constitutional Booker error violates a defendant’s substantial rights under plain-

error review, the defendant may show a “disconnect between the newly relevant

§ 3553(a) factors and the sentence given to [the defendant]” which “leads us to

believe that there is a reasonable probability that he would receive a lesser

sentence under the new sentencing regime.” Trujillo, 2005 WL 880896, at *3.

Or, failing that, the defendant may show that the “district court expressed

dissatisfaction with the mandatory character of the Guidelines” which “provides

another reason to believe that the plain error . . . prejudiced [the defendant].” Id.

at *4. Because, on the facts of this case, it is a very close question whether

Pineda-Rodriguez has shown his substantial rights were affected, we assume he

has made such a showing and turn to the fourth prong of plain-error review. Cf.

Gonzalez-Huerta, 2005 WL 807008, at *6 (“We need not determine whether

[defendant] can satisfy this burden [of showing his substantial rights were

affected] because even if he were to meet the third prong, he must also satisfy the

fourth prong to obtain relief.”).

      Applying that fourth prong, we have stated that “we will not notice a non-

constitutional error, such as the one in the case before us, unless it is both


                                          -11-
‘particularly egregious’ and our failure to notice the error would result in a

‘miscarriage of justice.’” Id. at *7 (quoting United States v. Gilkey, 118 F.3d

702, 704 (10th Cir. 1997)); see also United States v. Olano, 507 U.S. 725, 734

(1993). Pineda-Rodriguez “bears the burden of meeting this demanding

standard.” Gonzalez-Huerta, 2005 WL 807008, at *7. He fails to do so. Pineda-

Rodriguez offers only the conclusory statement that “refusing to remedy this

error so that Mr. Pineda-Rodriguez’s sentence will conform with the new

constitutional sentencing mandates of the Supreme Court would be fundamentally

unfair.” Appellant’s Supp. Opening Br. at 12. That is insufficient to establish

that the district court’s mandatory application of the Guidelines was “particularly

egregious” or would result in a “miscarriage of justice.” Not only does Pineda-

Rodriguez present a non-constitutional, rather than a constitutional, Booker error,

he also received a sentence that was indisputably “within th[e] national norm” for

offenders with similar criminal histories and offenses, “and the record is devoid

of any mitigating evidence.” Gonzalez-Huerta, 2005 WL 807008, at *8. Thus,

the application of a mandatory sentencing scheme, standing alone, is insufficient

to meet the fourth prong of plain error. Id. at **8-9.




                                         -12-
                        CONCLUSION

For the foregoing reasons, Pineda-Rodriguez’s sentence is AFFIRMED.



                                     ENTERED FOR THE COURT


                                     Stephen H. Anderson
                                     Circuit Judge




                              -13-
