U.S. v. Gonzalez-Huerta

• Citation: 403 F.3d 727
• Decision Date: 08 April 2005
• Docket Number: No. 04-2045.,04-2045.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sergio GONZALEZ-HUERTA; a/k/a Sergio Covarrublias; a/k/a Gonzalez-Covarrublias, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

403 F.3d 727

UNITED STATES of America, Plaintiff-Appellee, v. Sergio GONZALEZ-HUERTA; a/k/a Sergio Covarrublias; a/k/a Gonzalez-Covarrublias, Defendant-Appellant.

No. 04-2045.

United States Court of Appeals, Tenth Circuit.

April 8, 2005.

COPYRIGHT MATERIAL OMITTED

Demetra Lambros, United States Department of Justice, Criminal Division, Washington, D.C. (David C. Iglesias, United States Attorney, Norman Cairns, Assistant United States Attorney, Albuquerque, NM, with her on the briefs), for Plaintiff-Appellee.

Jenine M. Jensen Assistant Federal Public Defender, (Raymond P. Moore, Federal Public Defender, Denver, CO, with her on the briefs), appearing for Defendant-Appellant.

Norman R. Mueller, Haddon, Morgan & Foreman, P.C., Timothy M. Hurley, University of Denver Sturm College of Law, Jeremy Karpatkin and Andrew Unthank, Federal Appellate Clinic at University of Denver Sturm College of Law, Denver, CO; filed an amicus curiae brief for the National Association of Criminal Defense Lawyers.

Before TACHA, Chief Circuit Judge, SEYMOUR, EBEL, KELLY, HENRY, BRISCOE, LUCERO, MURPHY, HARTZ, O'BRIEN, McCONNELL, and TYMKOVICH, Circuit Judges.

TACHA, Chief Circuit Judge.

Defendant-Appellant Sergio Gonzalez-Huerta pleaded guilty to illegal reentry by a deported alien in violation of 8 U.S.C. § 1326(a)-(b)(2). The District Court sentenced Mr. Gonzalez-Huerta to 57 months' incarceration. In determining Mr. Gonzalez-Huerta's sentence, the court did not rely upon judge-found facts, but it did apply mandatorily the U.S. Sentencing Guidelines (2003) ("Guidelines"). Mr. Gonzalez argues for the first time on appeal that this mandatory application of the Guidelines constitutes reversible error under United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Because Mr. Gonzalez-Huerta did not raise this argument in the District Court, this appeal is reviewed only for plain error. See Fed.R.Crim.P. 52(b). We take jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1), hold that the fourth prong of plain-error review is not satisfied, and AFFIRM.

I. BACKGROUND

In 1994, Mr. Gonzalez-Huerta was convicted of committing burglary in California. After serving a prison term, he was deported to Mexico in 2000. In May 2003, Mr. Gonzalez-Huerta was arrested in New Mexico for possession of a controlled substance. While Mr. Gonzalez-Huerta was being held in a New Mexico jail, United States Border Patrol Agents discovered that he had reentered the country illegally.

The Government indicted Mr. Gonzalez-Huerta for unlawfully reentering the United States after deportation following an aggravated felony. See 8 U.S.C. § 1326(a)-(b)(2). By statute, this offense is punishable by a maximum sentence of 20 years, with no mandatory minimum sentence. 8 U.S.C. § 1326(b)(2). Mr. Gonzalez-Huerta pleaded guilty without entering into a plea agreement.

With the exception of its findings regarding Mr. Gonzalez-Huerta's prior convictions, the District Court calculated Mr. Gonzalez-Huerta's sentencing range under the Guidelines without making findings of fact beyond those admitted by Mr. Gonzalez-Huerta. In so doing, the District Court concluded that Mr. Gonzalez-Huerta had an offense level 21 and a criminal history category IV. The court then mandatorily applied the Guidelines, which set Mr. Gonzalez-Huerta's sentence range at 57-71 months' imprisonment, and imposed a 57-month sentence. While Mr. Gonzalez-Huerta did not object to the mandatory application of the Guidelines at sentencing, he did timely appeal his sentence.

While this case was pending on appeal, the Supreme Court issued its opinion in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004), which held that in a state prosecution the Sixth Amendment requires that the maximum permissible sentence in a given case must be determined solely by reference to "facts reflected in the jury verdict or admitted by the defendant." That is to say, the Court held that mandatory sentencing guidelines, which require the sentencing judge to make findings of fact, may not be used to increase a defendant's sentence in a state prosecution even though this enhanced sentence falls within the statutory sentencing range. In January of this year, the Court held that Blakely applies to federal sentences as well. Booker, 125 S.Ct. at 749-50.

On appeal, Mr. Gonzalez-Huerta argues for the first time that Booker is grounds for remanding his case for resentencing. We set this case for en banc review sua sponte to resolve this matter of great importance. See 28 U.S.C. § 46(c). We requested supplemental briefing from the parties on an expedited basis and received an amicus curiae brief from the National Association of Criminal Defense Lawyers. The question being fully argued, we turn to the single substantial issue in this appeal: On plain-error review, does the District Court's mandatory application of the Guidelines constitute reversible error when the District Court relied solely upon Mr. Gonzalez-Huerta's prior convictions and admitted facts in determining his maximum sentence?¹

II. DISCUSSION

A.

In Booker, the Court "reaffirm[ed its] holding in Apprendi: Any fact (other than a prior conviction) 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. As a result, the Court held that mandatory application of the Guidelines violates the Sixth Amendment when judge-found facts, other than those of prior convictions, are employed to enhance a sentence. The Court constructed a unique remedy to this constitutional infirmity. It severed two provisions of the Sentencing Reform Act of 1984, codified at 18 U.S.C. § 3551 et seq. Namely, it excised 18 U.S.C. § 3553(b)(1), which made the imposition of a Guidelines sentence mandatory in the vast majority of cases, and those portions of 18 U.S.C. § 3742(e) that established standards of review on appeal. Booker, 125 S.Ct. at 764. Henceforth, courts are still required to consider the Guidelines in determining sentences, but they are not required to impose a sentence within the Guidelines range. Id.

As a result, there are two distinct types of error that a court sentencing prior to Booker could make. First, a court could err by relying upon judge-found facts, other than those of prior convictions, to enhance a defendant's sentence mandatorily. As Booker makes clear, the Sixth Amendment prohibits this practice. 125 S.Ct. at 756. As a matter of convenience, we will refer to such an error as a "constitutional Booker error." Second, a sentencing court could err by applying 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 769. While this type of sentence does not violate the Sixth Amendment, id., such a sentence is nonetheless impermissible because the Court severed the portion of the Sentencing Reform Act that required the mandatory application of the Guidelines, id. at 764. We will refer to this second type of error as a "non-constitutional Booker error."

B.

This case presents us with a non-constitutional Booker error.² The record establishes that, except for the fact of Mr. Gonzalez-Huerta's prior convictions, the District Court relied solely upon facts admitted by Mr. Gonzalez-Huerta in calculating his maximum sentence. It is also undisputed that Mr. Gonzalez-Huerta did not raise this non-constitutional Booker error below. Thus, we review Mr. Gonzalez-Huerta's claim for plain error. See Fed.R.Crim.P. 52(b); Booker, 125 S.Ct. at 769 (stating in dicta that not every appeal should be remanded for resentencing "because we expect reviewing courts to ... determin[e] ... whether the issue was raised below and whether it fails the `plain error' test."); Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (holding that defendant's argument based upon United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), which held the failure to instruct the jury on the issue of materiality is a Sixth Amendment violation, was raised for the first time on appeal and thus subject to plain-error review).

We turn, then, to our application of plain-error review. "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 public reputation of judicial proceedings." United States v. Burbage, 365 F.3d 1174, 1180 (10th Cir.) (quotation omitted), cert. denied, ___ U.S. ___, 125 S.Ct. 510, 160 L.Ed.2d 381 (2004). Clearly, the first two prongs of the plain-error test are met here. First, the Booker Court excised 18 U.S.C. § 3553(b)(1), thereby rendering the Guidelines discretionary. Booker, 125 S.Ct. at 764. The District Court's mandatory application of the Guidelines, then, was erroneous. As to the second prong, an error is "plain" if it is clear or obvious at the time of the appeal, Johnson, 520 U.S. at 468, 117 S.Ct. 1544, and Booker renders the error here both clear and obvious on appeal. Thus, the primary issue in this case is whether Mr. Gonzalez-Huerta can satisfy both the third and fourth prongs of plain-error review.

C.

Satisfying the third prong of plain-error review — that the error affects substantial rights — "usually means that the error must have affected the outcome of the district court proceedings." United States v. Cotton, 535 U.S. 625, 632, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (quotations omitted); see also United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The appellant bears the burden to make this showing.³ United States v. Vonn, 535 U.S. 55, 62-63, 122 S.Ct....