                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                      December 14, 2005
                                TENTH CIRCUIT
                                                                          Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 04-8065
          v.                                        District of Wyoming
 JOSE IGNACIO ALVAREZ-                           (D.C. No. 03-CR-99-WFD)
 ALVAREZ,

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before EBEL, MURPHY, and McCONNELL, Circuit Judges.


      Jose Alvarez-Alvarez pleaded guilty to five counts related to the possession

and distribution of methamphetamine and the possession of a firearm. At his

sentencing hearing, Mr. Alvarez-Alvarez moved for several downward departures,



      *
         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). This 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    This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
including ones for cultural assimilation and for extraordinary family

circumstances. The district court denied his motions for downward departures

and imposed a sentence of 190 months. Mr. Alvarez-Alvarez appeals, and we

AFFIRM.

                                  Background

      On November 20, 2003, the grand jury returned a six-count superseding

indictment charging Mr. Alvarez-Alvarez with conspiracy to possess

methamphetamine with the intent to distribute (Count 1), possession of

methamphetamine with the intent to distribute (Count 2), distribution of

methamphetamine (Count 3), being a felon in possession of a firearm (Count 4),

being an illegal alien in possession of a firearm (Count 5), and using or carrying a

firearm while committing a drug trafficking offense (Count 6). During trial in

March 2004, Mr. Alvarez-Alvarez entered into a plea agreement in which he

pleaded guilty to Counts 1-5 and the government agreed to dismiss Count 6. The

district court held a sentencing hearing on June 2, 2004.

      At the sentencing hearing, Mr. Alvarez-Alvarez requested numerous

downward departures, among them ones for cultural assimilation and for

extraordinary family circumstances. Mr. Alvarez-Alvarez explained that,

although he is an illegal alien, he moved to the United States with his family

when he was less than one year old, attended schools in the United States, and


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speaks fluent English. He elaborated that his brothers and sisters are United

States citizens, his parents lawfully reside in the United States, and he has four

children who are United States citizens. In his sentencing memorandum presented

to the district court, he argued that he was entitled to a departure because of his

“very tragic upbringing.” During his childhood, his family was extremely poor

and he was the victim of physical abuse. The district court judge found no basis

for departure based on either extraordinary family circumstances or cultural

assimilation, explaining that because he had handled “scores of cases” where the

defendant had the same difficulties, Mr. Alvarez-Alvarez’s experiences were

“nothing outside the heartland.”

      The district court found that Mr. Alvarez-Alvarez’s offense level was 32,

and his criminal history category was IV, which leads to a guidelines range of

168-210 months’ imprisonment. Finding “more than a sufficient factual basis to

accept [Mr. Alvarez-Alvarez’s] plea of guilty,” the district court imposed a

sentence in the middle of the guidelines range, 190 months’ imprisonment. The

district court explained to Mr. Alvarez-Alvarez that “[t]he sentence to be

imposed” was “a severe one” that the judge thought was “entirely merited.” A

sentence “in the mid-range of this guideline range,” the court said, was “sufficient

deterrence and [would] adequately protect[] the community . . . for the

foreseeable future.” Sent. Tr. 31.


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      A final judgment was filed on June 9, 2004. Mr. Alvarez-Alvarez filed a

timely notice of appeal on June 18, 2004 and submitted his opening brief on

October 15, 2004. In his opening brief, Mr. Alvarez-Alvarez claimed that the

district court erred in denying his motions for downward departures on the basis

of extraordinary family circumstances and cultural assimilation. On December 1,

2004, Mr. Alvarez-Alvarez filed a pro se supplemental brief requesting

resentencing in light of lower courts’ interpretations of Blakely v. Washington,

542 U.S. 296 (2004), which we also construed as a motion for leave to file a

supplemental brief. We granted his motion to file a supplemental brief on

December 2, 2004. 1

      On December 8, 2005, counsel for Mr. Alvarez-Alvarez moved again for

leave to file a supplemental brief and filed a second supplemental brief. The

second supplemental brief included three arguments: (1) that the district court

erred, under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), in

treating the sentencing guidelines as mandatory, (2) that the district court erred in

allowing Mr. Alvarez-Alvarez to be convicted on more than one count of gun



      1
       This case was referred to this panel for decision on December 2, 2004.
Unfortunately, Mr. Alvarez-Alvarez’s case was erroneously captioned in our
docketing system as United States v. Payton, an appeal involving his co-
defendant. This error came to our attention on December 8, 2005, when Mr.
Alvarez-Alvarez’s counsel filed a second supplemental brief. We apologize for
our delay in addressing Mr. Alvarez-Alvarez’s claims.

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possession because there was only one gun, and (3) that the district court

erroneously added two criminal history points for misdemeanors that should not

have been counted.



                                    Discussion

      We deny Mr. Alvarez-Alvarez’s motion to file a second supplemental brief

with respect to the second two claims. Mr. Alvarez-Alvarez could have raised

these issues one year ago in either his opening brief or his first supplemental

brief, he has presented no explanation for his failure to do so, and we therefore

decline to consider them now. We grant the motion to file a second supplemental

brief on the Booker claim. Because Booker applies to “all cases on direct

review,” Booker, 125 S. Ct. at 769, we are required to consider whether the

district court’s mandatory application of the guidelines was erroneous.

      Mr. Alvarez-Alvarez contends that the district court abused its discretion by

denying his motions for downward departures based on his exceptional family

circumstances and his cultural assimilation. As the government asserts, we

cannot address the merits of this claim because the district court denied the

departures in an exercise of discretion. See United States v. Dias-Ramos, 384

F.3d 1240, 1242-43 (10th Cir. 2004) (noting that in the Tenth Circuit an appellate

panel has jurisdiction to review the denial of a requested departure only where the


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district court makes “an unambiguous statement that a category of requested

departures, as a matter of law, never constitutes valid grounds for departure”).

The district court never stated that it lacked authority to grant a departure for the

circumstances presented in Mr. Alvarez-Alvarez’s case. Instead, the district court

stated that it had “looked at the case law, taken the time to [look at what was]

cited by counsel, and [yet did] not believe there [was] a basis for departure based

on either extraordinary family circumstances or cultural assimilation.” Sent. Tr.

28. The court further noted that Mr. Alvarez-Alvarez’s case was similar to

“scores of cases” the judge had handled, and this case was “nothing outside the

heartland of those kinds of cases.” Id. These statements indicate that the district

court exercised its discretion in denying Mr. Alvarez-Alvarez’s request for

downward departures.

      Because Mr. Alvarez-Alvarez’s case was pending direct appeal when the

Supreme Court decided United States v. Booker, we next consider whether the

district court’s mandatory application of the sentencing guidelines requires a

remand for resentencing. We review this claim for plain error because Mr.

Alvarez-Alvarez did not object to the mandatory application of the guidelines

below. See United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005)

(en banc). “Plain error occurs when there is (1) error, (2) that is plain, which (3)

affects substantial rights, and which (4) seriously affects the fairness, integrity, or


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public reputation of judicial proceedings.” Id. (internal quotation marks and

citations omitted).

      The error that occurred in Mr. Alvarez-Alvarez’s sentencing proceeding

was non-constitutional Booker error. Non-constitutional Booker error occurs

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

discretionary, fashion. Gonzalez-Huerta, 403 F.3d at 731-32. This error,

although plain, did not affect Mr. Alvarez-Alvarez’s substantial rights because it

did not affect the outcome of the district court proceedings. See id. at 732. The

district court considered and rejected several grounds for downward departures.

Nonetheless, the district court decided to sentence Mr. Alvarez-Alvarez in the

middle of the guidelines range. The district court stated that the 190-month

sentence “is entirely merited,” and there is no reason to think the district court

would impose a lighter sentence on remand. Accordingly, the non-constitutional

Booker error did not affect Mr. Alvarez-Alvarez’s substantial rights and he is

therefore not entitled to resentencing.

                                     Conclusion

      For the foregoing reasons, the judgment of the United States District Court

for the District of Wyoming is AFFIRMED.

                                                Entered for the Court,

                                                Michael W. McConnell
                                                Circuit Judge

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