* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore submitted without o ral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court ge nerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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

### January 24, 2006 Elisabeth A. Shumaker Clerk of Court 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JOSE MEDRANO, Defendant-Appellant. No. 05-2057 (D.C. No. CR-03-895-LH) (New Mexico)



### ORDER AND JUDGMENT *

Before SEYMOUR , HARTZ , and McCONNELL , Circuit Judges.

Jose Medrano brings this appeal asserting he was se ntenced in violation of United States v. Booker , 125 S. Ct. 738 (2005). We review “the district c ourt’s legal interpretation and application of the sentenc ing guidelines de novo . . . .”-2-

United States v. Henry , 164 F.3d 1304, 1310 (10th Cir. 1999). Because th e district court did not run afoul of Bookerin sentencing Mr. Medrano, we affirm his sentence. Mr. Medrano was indicted by a grand jury of a singl e count of distribution of five grams or more of methamphetamine in violati on of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). In April 2004, he was found guilty by a jury. Soon thereafter, the Supreme Court issued its decision in Blakely v. Washington , 542 U.S. 296 (2004). Mr. Medrano objected to his pre-sentence report (PS R), claiming in part that under Blakelyhis offense level should be calculated solely by the amount of substance containing methamphetamine alleged in his indictment and found by the jury rather than the weight of the substance set fo rth in the PSR. He also objected to the PSR’s recommendation for an offense level in crease for obstruction of justice pursuant to U.S.S.G. § 3C1.1. The district court postponed sentencing to await th e Supreme Court’s decision in Booker . At sentencing, Mr. Medrano’s attorney reassertedhis objections to the PSR, arguing that calculation of Mr. Medrano’s offense level should be limited to the facts found by the jury rather than facts found by the judge by relying on the PSR. Mr. Medrano’s attorne y did not challenge the accuracy of the drug amounts listed in the PSR, how ever, and conceded that after Bookerthe sentencing guidelines are advisory.-3-

After hearing arguments, the district court decline d to increase Mr. Medrano’s offense level for obstruction of justice. But the court determined that based on the amount of methamphetamine involved in the transaction as asserted in the PSR, Mr. Medrano’s offense level should be 3 0. The court concluded that Mr. Medrano’s total offense level, coupled with his criminal history category of I, subjected him to an advisory sentencing range of 97 to 121 months in prison. The court sentenced Mr. Medrano to 97 months. On appeal, Mr. Medrano contends the district court violated Bookerby calculating his offense level based on judge found facts rather than solely on facts found by the jury. This argument highlights Mr. Me drano’s misunderstanding Booker , which held “that mandatoryapplication of the Guidelines violates the Sixth Amendment when judge-found facts, other than those of prior convictions, are employed to enhance a sentence.” United States v. Gonzalez-Huerta , 403 F.3d 727, 731 (10th Cir. 2005) ( en banc ) (emphasis added). In order to save guideline sentencing from ultimate demise, the Court made the guidelines “effectively advisory.” Booker , 125 S. Ct. at 756-57. Therefore, after Booker , a judge may sentence a defendant based on judge-found facts so long as the court does not apply the guidelines in a mandatory fashion. As we said in United States v. Magallanez , 408 F.3d 672, 685 (10th Cir. 2005): [D]istrict courts are still required to consider Gu ideline ranges, which are determined through application of the pre ponderance-4-

standard, just as they were before . The only difference is that the court has latitude, subject to reasonableness revie w, to depart from the resulting Guideline ranges. . . . [W]hen a dist rict court makes a determination of sentencing facts by a preponderanc e test under the now-advisory Guidelines, it is not bound by jury de terminations reached through application of the more onerous rea sonable doubt standard. In this respect, the prior Guidelines sc heme is unchanged by the seeming revolution of Booker. Id. at 685 (citations omitted) (emphasis added). See also Gonzalez-Huerta , 403 F.3d at 731 (“[C]ourts are still required to consid er the Guidelines in determining sentences, but they are not required to impose a se ntence within the Guideline range.”). The district court did not depart from the procedur e detailed in Magallanez when it sentenced Mr. Medrano. It made findings to determine Mr. Medrano’s offense level and criminal history category in orde r to reach the applicable advisory guidelines range. Mr. Medrano’s attorney expressly agreed to the court’s calculations. See Aplt. App., tab 5 at 42. The court then sentenced Mr. Medrano to a reasonable sentence within that range. This process was in full accord with Bookerand Magallanez

. In the alternative, Mr. Medrano contends his senten ce is nevertheless unlawful because the district court treated the gui delines as mandatory in setting his sentence. He does not argue that his post- Bookersentence is unreasonable. See Booker , 125 S. Ct. at 767 (“The courts of appeals review sentencing decisions for unreasonableness.”). Rather, he posits that th e district court erred by-5-

complying with the notes in the guidelines’ Drug Qu antity Table. Note B directs that “in the case of a mixture or substance contain ing . . . methamphetamine, use the offense level determined by the entire weight o f the mixture or substance, or the offense level determined by the weight of the . . . methamphetamine (actual), whichever is greater.” U.S.S.G. § 2D1.1 n.B. The actual weight of the methamphetamine in Mr. Medrano’s case was 34.2 gram s, while the weight of the entire mixture containing the methamphetamine was 3 89.3 grams. In accordance with Note B, the district court calculated Mr. Medr ano’s offense level based on the larger amount. Mr. Medrano argues that because the guidelines are now advisory, the district court was wrong to comply wi th the directions provided in Note B. In essence, he appears to contend that the district court was at liberty to disregard the offense level calculation methodologyoutlined in the guidelines and arrive at a lower offense level for Mr. Medrano by calculating his offense level based on the actual weight of the methamphetamine r ather than the entire weight of the methamphetamine mixture. Again, Mr. Medrano’s argument exposes his misconcep tion of post- Booker sentencing. While the ultimate guidelines imprison ment range is now advisory, see Booker , 125 S. Ct. at 756–57, the process of determining the correct guideline range is the same as it was before Booker

. Id. at 767 (“The district courts, while not bound to apply the Guidelines, must consult tho se Guidelines and take them-6-

into account when sentencing.”); see also Magallanez , 408 F.3d at 685 (“district courts are still required to consider Guideline ran ges”); United States v. Mares , 402 F.3d 511, 519 (5th Cir. 2005) (“[The] duty to ‘ consider’ the Guidelines will ordinarily require the sentencing judge to determin e the applicable Guideline range even though the judge is not required to sent ence within that range. The Guideline range should be determined in the same manner as before Booker/Fanfan .”). The district court did not err in relying on Note B to the Drug Quantity Table to determine Mr. Medrano’s guideline offense level. See United States v. Brooks , 161 F.3d 1240, 1248 (10th Cir. 1998) (“[N]otes orcommentary to the sentencing guidelines are considered binding authority unless either violative of the Constitution or a federal statute, or clearly inconsistent with the guideline commentary [it] purports to explain.”). We AFFIRM

. SUBMITTED FOR THE COURT Stephanie K. Seymour Circuit Judge