*

 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.

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 Defendant-Appellant. 

William J. Leone, Acting United States Attorney, and Jerry N. Jones, Assistant

United States Attorney, Denver, Colorado for Plaintiff-Appellee.

Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.
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The defendant, Oscar Serrano-Dominguez, appeals his sentence of 33

months imprisonment for illegally reentering the United States in violation of 8

U.S.C. § 1326. Mr. Serrano-Dominguez argues that the use of the Federal

Sentencing Guidelines (“Guidelines”) to sentence him is unconstitutional in light

of Blakely v. Washington, 124 S.Ct. 2531 (2004). We evaluate this claim now

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 States 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 through 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 enhancement because 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
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acceptance of responsibility, U.S.S.G. § 3E1.1. Based on his total offense level

of 13 and a criminal history category of VI, the presentence 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 motion 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 discuss his plea in light of

Blakely. After this discussion, he signed a statement reaffirming the plea

agreement with the knowledge that he had a Sixth Amendment right to have a jury

find any sentence enhancing facts by a reasonable doubt. Mr. Serrano-Dominguez

testified under oath that he accepted the provisions in the written statement. 

However, the signed statement reserved the right “to 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 imprisonment. In addition, the

district court imposed an alternative sentence of 33 months imprisonment in the

event the Supreme Court changed the status of the Guidelines pursuant to Blakely.
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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 sufficient to preserve a

potential Sixth Amendment error pursuant to Booker, 396 F.3d 1140, 1142-43

(10th Cir. 2005). Where a defendant preserves a potential Booker error, we will

remand if the error was not harmless, i.e., the error 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 Booker error occurs when a judgefound fact (other than a prior conviction) increases a defendant’s sentence beyond

the maximum authorized by a jury’s verdict or a plea of guilty through the

application of mandatory guidelines. Booker, 125 S.Ct. at 756. Nonconstitutional error is a product of the remedial opinion 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)). Severing

this provision effectively rendered the Guidelines advisory, although sentencing

courts must consult both the Guidelines and the factors 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 criminal histories and found

guilty of similar conduct, id. § 3553(a)(6).

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3553(a),1 and appellate courts will reverse any sentences that are unreasonable. 

Id. at 767. Any sentence imposed through mandatory application of the

Sentencing Guidelines, even where there is no Sixth Amendment 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-mandatory range provided by the

Sentencing Guidelines. Accordingly, there was an error in Mr. SerranoDominguez’s sentence, and we must determine whether or not this error was

harmless.

In Labastida-Segura, the defendant, like Mr. Serrano-Dominguez, admitted

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 framed the harmless error

analysis by asking whether the non-constitutional Booker error affected the

sentence the defendant would receive under the post-Booker framework of

consulting advisory Guidelines, the § 3553(a) factors, and review for
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unreasonableness. Id. Because this inquiry would have “place[d] us in the zone

of speculation and conjecture” we could not conclude 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 result. 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 engage in prohibited

speculation and conjecture to conclude that he would receive the same sentence

on remand. The analysis of whether Booker errors affect substantial

rights—either under the rubric of harmless error or plain error—has produced

much hand wringing by appellate courts. Fortunately, we do not need to read any

tea leaves to determine what the district court would do on remand.

With commendable prescience, the district court announced an alternative

sentence, which applied the methodology suggested by Booker. Before doing so,

the district court asked Mr. Serrano-Dominguez “is it your desire to have an

alternative sentence imposed here?” Through counsel, Mr. Serrano-Dominguez
2At the beginning of the sentencing hearing, the district court asked the

parties if they wished to supplement the record, and both before and after

explaining the basis for the alternative sentence, the court invited the parties to

make “further argument.” Counsel declined both invitations. 

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answered: “Sure, your honor. Yes.”2 The district court determined the

alternative sentence by applying the § 3553(a) factors relevant to the defendant:

In considering [the § 3553(a)] factors, I note that the defendant

has a substantial criminal record. He has an apparent substance

abuse problem. He has worked here in the United States 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 and

considering the statutory factors, I would intend to impose precisely

the same sentence as the guidelines require, 33 months of

incarceration . . . .

R. Vol. II at 19. The alternative sentence was exactly the same as the sentence 

determined using the mandatory Guidelines: 33 months.

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 when the district court did not

“specifically state” that a defendant’s sentence would 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 same sentence. 

Consequently, the error in his sentence is harmless. A remand would needlessly
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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 .