* After examining the briefs and appellate record, t his panel has determined

unanimously that oral argument would not materiallyassist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T his case is therefore submitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 4 2005 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 04-1398 OSCAR SERRANO-DOMINGUEZ,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO (D.C. NO. 04-CR-145-MK)

Submitted on the briefs. * Raymond P. Moore, Federal Public Defender, and Edward R. Harris, Assistant Federal Public Defender, Denver, Colorado for Defen dant-Appellant. William J. Leone, Acting United States Attorney, an d Jerry N. Jones, Assistant United States Attorney, Denver, Colorado for Plaint iff-Appellee.

Before SEYMOUR , HARTZ , andMcCONNELL , Circuit Judges.

McCONNELL , Circuit Judge.-2-

The defendant, Oscar Serrano-Dominguez, appeals his sentence of 33 months imprisonment for illegally reentering the Un ited States in violation of 8 U.S.C. § 1326. Mr. Serrano-Dominguez argues that the use of the Federal Sentencing Guidelines (“Guidelines”) to sentence hi m is unconstitutional in light of Blakely v. Washington , 124 S.Ct. 2531 (2004). We evaluate this claim no w that the Supreme Court has issued its decision in United States v. Booker , 125 S.Ct. 738 (2005), and AFFIRM Mr. Serrano-Dominguez’s sentence.
I. Mr. Serrano-Dominguez was found in the United State s on or about March 8, 2004. The indictment alleged that he illegally reentered the country after he was convicted of an aggravated felony and deported. Mr. Serrano-Dominguez entered into a plea agreement, in which he admitted the conduct alleged in the indictment, and the government agreed to recommend a three-level decrease in his offense level for his acceptance of responsibility. The plea agreement stipulated that Mr. Serrano-Dominguez would be sentenced throu gh the application of the Guidelines. The probation officer assigned a base offense level of 8, see U.S.S.G. § 2L1.2(a) (2003), and applied an 8-level enhancementbecause Mr. SerranoDominguez had a prior conviction for an aggravated felony. See U.S.S.G. § 2L1.2(b)(1)(C). Mr. Serrano-Dominguez received a three-level reduction for-3-

acceptance of responsibility, U.S.S.G. § 3E1.1. Ba sed on his total offense level of 13 and a criminal history category of VI, the pr esentence report determined that the permissible range for the sentence was 33 to 41 months. See U.S.S.G. ch. 5 pt. A. Prior to sentencing Mr. Serrano-Dominguez filed a m otion seeking to declare the Guidelines as a whole unconstitutional pursuant to Blakely . The district court denied the motion. However, before sentencing, the district court directed Mr. Serrano-Dominguez and his counsel to d iscuss his plea in light of Blakely . After this discussion, he signed a statement rea ffirming the plea agreement with the knowledge that he had a Sixth Am endment right to have a jury find any sentence enhancing facts by a reasonable d oubt. Mr. Serrano-Dominguez testified under oath that he accepted the provision s in the written statement. However, the signed statement reserved the right “t o challenge the constitutionality of the U.S. Sentencing Guidelines .” R. Vol. I Doc. 33 ¶ 10. After establishing this waiver, the district court sentenced Mr. SerranoDominguez, under the Guidelines, to 33 months impri sonment. In addition, the district court imposed an alternative sentence of 3 3 months imprisonment in the event the Supreme Court changed the status of the G uidelines pursuant to Blakely

.-4- II. Mr. Serrano-Dominguez appeals the district court’s denial of his motion to declare the Sentencing Guidelines unconstitutional. In United States v. Labastida-Segura , we concluded that a similar appeal was sufficientto preserve a potential Sixth Amendment error pursuant to Booker, 396 F.3d 1140, 1142-43 (10th Cir. 2005). Where a defendant preserves a po tential Bookererror, we will remand if the error was not harmless, i.e., the err or did not affect the defendant’s substantial rights. See id. ; Fed. R. Crim. P. 52(a). There are two types of error under Booker : constitutional error and nonconstitutional error. See United States v. Gonzalez-Huerta , 2005 WL 807008 *2 (10th Cir. 2005) (en banc). Constitutional Bookererror occurs when a judgefound fact (other than a prior conviction) increase s a defendant’s sentence beyond the maximum authorized by a jury’s verdict or a ple a of guilty through the application of mandatory guidelines. Booker , 125 S.Ct. at 756. Nonconstitutional error is a product of the remedial o pinion in Booker , which severed the statutory provision requiring mandatory application of the Sentencing Guidelines in most cases. Id. at 764 (severing 18 U.S.C. § 3553(b)(1)). Severin g this provision effectively rendered the Guidelines advisory, although sentencing courts must consult both the Guidelines and the fac tors listed in 18 U.S.C.1 18 U.S.C. § 3553(a) requires the sentencing court to consider factors such

as the history and characteristics of the defendant , 18 U.S.C. § 3553(a)(1), the sentencing range suggested by the Guidelines, id. § 3553(a)(4), and the need for sentencing uniformity for defendants with similar c riminal histories and found guilty of similar conduct, id . § 3553(a)(6). -5- 3553(a), 1 and appellate courts will reverse any sentences th at are unreasonable. Id. at 767. Any sentence imposed through mandatory ap plication of the Sentencing Guidelines, even where there is no SixthAmendment violation, is

erroneous. Gonzalez-Huerta , 2005 WL at *2. This case involves only non-constitutional error. In his guilty plea, Mr. Serrano-Dominguez admitted all the facts necessary to authorize his sentence, so his sentence does not implicate the Sixth Amendment . However, the district court applied a sentence at the bottom of the then-mandat ory range provided by the Sentencing Guidelines. Accordingly, there was an e rror in Mr. SerranoDominguez’s sentence, and we must determine whetheror not this error was harmless.
In Labastida-Segura , the defendant, like Mr. Serrano-Dominguez, admitt ed all the facts required to support his sentence and received a sentence at the bottom of the Guidelines range. 396 F.3d at 1142. We fra med the harmless error analysis by asking whether the non-constitutional Bookererror affected the sentence the defendant would receive under the post

- Bookerframework of consulting advisory Guidelines, the § 3553(a) facto rs, and review for-6-

unreasonableness. Id. Because this inquiry would have “place[d] us in t he zone of speculation and conjecture” we could not conclud e that the error in Mr. Labastida-Segura’s sentence was harmless. Id. at 1143. Accordingly, we remanded the case for resentencing. Mr. Serrano-Dominguez urges us to reach the same re sult. He contends that if we remand his case, it is possible that the district court, untethered from the mandatory Guidelines, will impose a shorter sentence than the one he initially received. He argues that the Court would have to e ngage in prohibited speculation and conjecture to conclude that he woul d receive the same sentence on remand. The analysis of whether Bookererrors affect substantial rights—either under the rubric of harmless error orplain error—has produced much hand wringing by appellate courts. Fortunatel y, we do not need to read any tea leaves to determine what the district court wou ld do on remand. With commendable prescience, the district court ann ounced an alternative sentence, which applied the methodology suggested b y Booker . Before doing so, the district court asked Mr. Serrano-Dominguez “is it your desire to have an alternative sentence imposed here?” Through counse l, Mr. Serrano-Dominguez2 At the beginning of the sentencing hearing, the dis trict court asked the

parties if they wished to supplement the record, an d both before and after explaining the basis for the alternative sentence, the court invited the parties to make “further argument.” Counsel declined both inv itations. -7- answered: “Sure, your honor. Yes.” 2 The district court determined the alternative sentence by applying the § 3553(a) fact ors relevant to the defendant:

In considering [the § 3553(a)] factors, I note thatthe defendant has a substantial criminal record. He has an appar ent substance abuse problem. He has worked here in the United St ates but apparently has no valid Social Security number and has paid no taxes. He has apparently acquired assets, but it’s unclear how these assets came to be acquired and what the disposition of these assets is. Under these circumstances outside the guidelines an d considering the statutory factors, I would intend t o impose precisely the same sentence as the guidelines require, 33 mon ths of incarceration . . . . R. Vol. II at 19. The alternative sentence was exa ctly the same as the sentence determined using the mandatory Guidelines: 33 month s. The district court’s statement eliminates any need to speculate about what it would do on remand. Cf. United States v. Urbanek , 930 F.3d 1512, 1515-16 (10th Cir. 1991) (finding that error was not harmless whe n the district court did not “specifically state” that a defendant’s sentence wo uld be the same under the correct offense level). The district court applied the sentencing methodology suggested in Booker and concluded that even if the Guidelines were not mandatory Mr. Serrano-Dominguez would receive the s ame sentence. Consequently, the error in his sentence is harmless . A remand would needlessly-8-

burden the district court and counsel with another sentencing proceeding, which we know would produce the same result. Mr. Serrano -Dominguez’s sentence is
AFFIRMED

.