* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10 TH C IR
. R. 36.3. 

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

### July 27, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 04-4215

v. (D. Utah)FRANCISCO VALDEZPALACIOS, a/k/a Francisco GamaPalacious, a/k/a Francisco Mendoza-Cruz, a/k/a Antonio Bentancourt-Arellano,

Defendant-Appellant. (D.C. No. 2:03-CR-913-DB)

ORDER AND JUDGMENT *

Before EBEL , McKAY , and HENRY , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a dec ision on the briefs without oral argument. See F ED
. R. A PP
. P. 34( F ). The case is therefore submitted without oral argument.-2- I. BACKGROUND Francisco Valdez-Palacios pleaded guilty to one cou nt of illegal reentry following deportation, in violation of 8 U.S.C. § 1 326(a). The presentence report calculated the offense level at twenty-two (a base offense level of eight, a sixteen-level increase for a prior felony convictio n for a crime of violence, and a two-level reduction for acceptance of responsibility). At sentencing, the government recommended an additional one-point redu ction for acceptance of responsibility. Based on an offense level of twent y-one and a criminal history of VI, the district court determined the Guidelines ra nge to be seventy-seven to ninety-six months. Mr. Valdez-Palacios informed th e court that he did not dispute the guideline range and the criminal history catego ry. The district court sentenced Mr. Valdez-Palacios to eighty-seven months’ incarceration. It provided the following explanati on of that sentence:

I have chosen a sentence midway between the low end and the top end of the guidelines. That takes almost a year off your sentence from what it could have been . . . . I know that is not much shorter, but it is a year. I hope that you recognize that I’m doing it because I’m giving some credence to your story that your ca me back [to the United States] for your child’s kidney problem. And more importantly, I believe that you may be planning to turn your life around. You’re 37 years old and-3- I agree with [the probation officer] that if we jus t look at the record it is dismal, a very bad criminal record . I am sure if you return to this country illegally in the future that the next sentencing judge will be less inclined tha t I am today to give you any break at all. Rec. vol. III, at 8-9 (Tr. of Aug. 18, 2004 Sentenc ing Hr’g).

. II. DISCUSSION The district court sentenced Mr. Valdez-Palacios on August 18, 2004, before the United States Supreme Court issued its d ecision in United States v

. Booker , 125 S. Ct. 738 (2005). In this appeal, Mr. Valde z-Palacios argues that, in light of Booker , the district court erred in applying the United S tates Sentencing Guidelines as mandatory. He characterizes this err or as structural and contends that we should remand the case for resentencing und er the discretionary postBookerscheme. Because Mr. Valdez-Palacios did not object in the d istrict court proceedings to the mandatory application of the Gui delines, our review is for plain error. 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 public reputation of the proceedings. ” Id. at 731-32 (quotation marks and citation omitted).-4-

In conducting this analysis, we must first determi ne the particular kind of Bookererror at issue. As we have explained, Booker indicates that sentencing courts can make two types of errors in applying the Guidelines. First, “a court could err by relying on judge-found facts, other th an those or prior convictions, to enhance a defendant’s sentence mandatorily.” Id. Because this practice is barred by the Sixth Amendment, we have christened it “cons titutional Booker error.” Id. Second, “a sentencing court could err by applying t he Guidelines in a mandatory fashion, as opposed to a discretionary fashion, eve n 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 convict ion.” Id . at 731-32. This second type of error is now known as “non-constitut ional Booker error.” Id. at 732. Here, other than the prior convictions, the distric t court relied solely on facts that Mr. Valdez-Palacios had admitted. Accor dingly, Mr. Valdez-Palacios has alleged only non-constitutional Booker error—that he was improperly sentenced under the mandatory Guidelines scheme. U pon review of the record and the applicable law, we conclude that although t he district court committed (1) non-constitutional Booker error that (2) was plain, Mr. Valdez-Palacios has failed to establish either that this error (3) affected hi s substantial rights or (4) seriously affected the fairness, integrity, or public reputat ion of judicial proceedings.-5-

As to the third prong, Mr. Valdez-Palacios has the burden of showing that his substantial rights have been affected. Id. at 732-33. To satisfy that burden, he must show a reasonable probability that “had the district court’s applied the post-Bookersentencing framework, he would have received a les ser sentence.” United States v. Trujillo-Terrazas , 405 F.3d 814, 819 (10th Cir. 2005). He may make that showing by pointing to the sentencing jud ge’s expressions of unhappiness with the mandatory nature of the Guidel ines. Gonzalez-Huerta , 403 F.3d at 734. Alternatively, he may attempt to argu e, based on the facts of his case, that there is a reasonable probability that h is sentence would have been different had the sentencing judge not viewed the G uidelines as mandatory. Id. As to the fourth prong of the plain error inquiry, Mr. Valdez-Palacios must demonstrate that the non-constitutional error is “p articularly egregious” and that “our failure to notice the error would result in a miscarriage of justice.” Id. at 736 (internal quotation marks omitted). Conclusory statements as to the gravity of the error are insufficient to satisfy this “dema nding” standard. Id. at 737-38. Here, Mr. Valdez-Palacios does not even attempt to argue that he would receive a lesser sentence under the post-Booker discretionary scheme. Instead, he argues that the non-constitutional Booker error is structural and thus does not require a showing of prejudice. We have directly r ejected that proposition. See Gonzalez-Huerta , 403 F.3d at 734 (holding that “non-constitutional Bookererror-6-

is not structural error”). In light of Mr. Valdez- Palacios’s failure to argue that he was prejudiced by the mandatory application of the Guidelines, he has failed to satisfy the third and fourth parts of the plain err or inquiry.

III. CONCLUSION Accordingly, we AFFIRM Mr. Valdez-Palacios’s senten ce.

Entered for the Court,

Robert H. Henry Circuit Judge