* This order and judgment is not binding precedent, except under the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 10th Cir. R. 36.3. 

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

### May 23, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 04-2233
v. (D. New Mexico) JESUS PEREZ-HERNANDEZ,

Defendant-Appellant. (D.C. No. CR-04-974-RB)

ORDER AND JUDGMENT *

Before EBEL , McKAY , and HENRY , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See F ED
. R. A PP
. P. 34(a)(2); 10 TH C IR
. R. 34.1(G). The case is therefore ordered submitted without oral argument. On May 20, 2004, Mr. Perez-Hernandez was indicted o n one count of illegal reentry into the United States after deport ation and conviction for an-2-

aggravated felony, in violation of 8 U.S.C. §§ 1326 (a)(1), (2), and (b)(2). On June 8, 2004, Mr. Perez-Hernandez pleaded guilty to the indictment without a plea agreement. On August 20, 2004, the district c ourt sentenced Mr. PerezHernandez to 57 months of imprisonment. Mr. Perez- Hernandez now appeals his sentence, contending the district court erred in ap plying an enhancement for his prior conviction for an aggravated felony. He clai ms that enhancements for prior convictions must be based on facts found by a jury, as required under Blakely v. Washington , ___ U.S. ___, 124 S. Ct. 2531 (Jun. 24, 2004) and United States v. Booker , ___ U.S. ___, 125 S. Ct. 738 (Jan. 12, 2005). We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and affirm Mr. Perez- Hernandez’s conviction and
sentence. I. BACKGROUND Mr. Perez-Hernandez was arrested on Mach 29, 2004 a nd charged with illegally reentering the United States after having been deported. He had been deported to Mexico on April 21, 2001, after his con victions in Forsyth County, Georgia for possession with intent to distribute me thamphetamine and possession with intent to distribute marijuana. He received a sentence of ten years for the state convictions; after he served two years in pri son he was placed on probation for the remaining eight years.-3-

According to the presentence report, Mr. Perez-Hern andez’s base offense level was 8, pursuant to United States Sentencing G uidelines Manual § 2L1.2(a). The probation officer recommended that Mr. Perez-He rnandez receive a 16-level upward adjustment pursuant to USSG §2L1.2(b)(1)(A)( ii) because he had the two prior drug convictions in Georgia and had served a prison term of more than thirteen months. The probation officer recommended that Mr. Perez-Hernandez receive a three-level downward adjustment to his of fense level for acceptance of responsibility pursuant to USSG § 3E1.1. Mr. Perez -Hernandez’s adjusted offense level was thus 21. Mr. Perez-Hernandez was in criminal history category IV. His criminal history category was based on three criminal history points for each prior drug conviction and two points for having committed the instant offense while on probation from the drug convictions. The resulting guideline range was 57 to 71 months. Mr. Perez-Hernandez made no objection to the senten cing recommendations in the presentence report, including the fact he wa s previously convicted for distribution and possession. Similarly, at the sen tencing hearing, neither Mr. Perez-Hernandez nor his attorney objected to the fa ctual statements in the presentence report concerning his prior conviction. On August 20, 2004, the district court adopted the findings of the presente nce report and sentenced Mr.-4-

Perez-Hernandez to 57 months of imprisonment and tw o years of supervised release. II. DISCUSSION Mr. Perez-Hernandez timely filed his appeal, and, f or the first time, challenges the continued viability of Almendarez-Torres v. United States , 523 U.S. 224, 243-44 (1998), which held that the fact o f a prior conviction is an exception to the rule that all facts which raise th e maximum sentence must be submitted to a jury and proved beyond a reasonable doubt. As a result, he suggests Almendarez-Torres was wrongly decided, and that sentencing enhancements made on the basis of prior convictions must be authorized by a jury verdict or a defendant’s admission. In addition, Mr. Perez-Hernandez suggests that beca use the Guidelines are now advisory rather than mandatory, in the wake of Booker , he is entitled to a remand for resentencing on grounds that his previou s sentence was imposed in violation of law under an unconstitutional interpre tation of the Guidelines. Mr. Perez-Hernandez contends that this error amounts to plain error. Mr. Perez-Hernandez acknowledges that because he ha s neither previously objected to the fact of his conviction nor previous ly raised any potential Sixth Amendment or non-constitutional Booker violation, we review the district court’s sentence under the plain error standard set forth i n United States v. Olano , 507-5-

U.S. 725, 731, (1993). See also F ED
. R. C RIM
. P. 52(b). Under the plain error standard, an appellant must clear several hurdles: [T]he error must (1) be an actual error that was fo rfeited; (2) be plain or obvious; and (3) affect substantial rights, in o ther words, in most cases the error must be prejudicial, i.e., it must have affected the outcome of the trial. . . . Given plain error that affects substantial rights, an appellate court should exercise its disc retion and notice such error where it either (a) results in the convi ction of one actually innocent, or (b) seriously affects the fairness, in tegrity or public reputation of judicial proceedings. United States v. Keeling , 235 F.3d 533, 538 (10th Cir. 2000) (internal quot ation marks and citations omitted). A. Sixth Amendment/ Almendarez-Torres Claim Although we acknowledge that Almendarez-Torres has been called into question, it has not been overruled. In Shepard v. United States , 2005 WL 516494, *9 (U.S. Mar. 7, 2005), Justice Thomas, in a concurring opinion, noted that: Almendarez-Torres . . . has been eroded by this Court’s subsequent Sixth Amendment jurisprudence, and a majority of th e Court now recognizes that Almendarez-Torres was wrongly decided. . . . The parties do not request it here, but in an appropria te case, this Court should consider Almendarez-Torres’continuing viability. Innumerable criminal defendants have been unconstit utionally sentenced under the flawed rule of Almendarez-Torres , despite the fundamental “imperative that the Court maintain abs olute fidelity to the protections of the individual afforded by the n otice, trial by jury, and beyond-a-reasonable-doubt requirements.” Harris v. United States , 536 U.S. 545, 581-582, (2002) (Thomas, J., dissen ting). 2005 WL 516494, *9 (U.S. Mar. 7, 2005) (Thomas, J., concurring in part).-6-

Despite this admonition, “as an inferior federal co urt we have the responsibility to follow directly applicable Suprem e Court decisions.” United States v. Ordaz, 398 F.3d 236, 241 (3d Cir. 2005). “The holding in Almendarez-Torres remains binding law, and nothing in Blakely or Booker holds otherwise. Thus, because we are bound by Almendarez-Torres , we hold that the district court’s determination regarding the facts of [Mr. Perez-Hernandez’s] prior convictions did not violate the Sixth Amendment, no twithstanding that the sentences were based, in part, on facts found by a judge rather than a jury.” Id. Furthermore, the Supreme Court in Blakely unequivocally restated the proposition announced in Apprendi, 530 U.S. at 490: “[ o ] ther than the fact of a prior conviction , any fact that increases the penalty for a crime b eyond the prescribed . . . maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Blakely, 124 S. Ct. at 2536 (emphasis added); see also United States v. Cooper , 375 F.3d 1041, 1052-53 n.3 (10th Cir.), cert. denied, 125 S. Ct. 634 (2004). Furthermore, in Booker , the Supreme Court reaffirmed the proposition that the fact of a prior conviction is an exception to factual jury submissions: [W]e reaffirm our 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 pl ea of guilty or a jury verdict must be admitted by the defendant or p roved to a jury beyond a reasonable doubt.-7-

125 S. Ct. at 756 (emphasis added). Thus, we rejec t Mr. Perez-Hernandez’s argument that the decision in Blakely prohibits enhancement of his sentence for his prior conviction because a jury did not make a factual determination as to that conviction. No question of fact existed for a jury to decide. As to this issue, Mr. Perez-Hernandez cannot not show there was any error , much less plain error. B. Non-constitutional error Similarly Mr. Perez-Hernandez cannot establish that the sentencing court would have reached a different sentence had it know n the guidelines were advisory and not mandatory. Although we have deter mined that such an error is “plain,” under the first and second prongs of the Olano test, “the primary issue . . . is whether Mr. [Perez-Hernandez] can satisfy both the third and fourth prongs of plain-error review.” United States v. Gonzalez-Huerta, 2005 WL 807008, *3 (10th Cir. 2005) (en banc). To satisfy the third p rong of Olano ’s plain error analysis, Mr. Perez-Hernandez retains the burden to show that his substantial rights were affected. See id. In addition, pursuant to the fourth prong, “we will not notice a non-constitutional error, such as the one in the case before us, unless it is both ‘particularly egregious’ and our failure to notice the error would result in a ‘miscarriage of justice.’” Id. As we held in Gonzalez-Huerta , where the defendant raised a similar challenge, here, Mr. Perez-Hernandez “fails to meet his burden to satisfy the-8-

fourth prong of plain-error review.” Id. at 8. In his reply brief on appeal, he offers little more than the assertion that “absent the constrictions of the Guidelines, the sentencing court would have been fr ee to more fully consider Mr. Perez-Hernandez’s circumstances and determine a rea sonable sentence.” Aplt’s Reply Br. at 3. Without more, “we cannot hold, bas ed upon the culmination of these factors, that the mandatory application of th e Guidelines in this case–while error–is a particularly egregious one that would re sult in a miscarriage of justice or otherwise call the judiciary into disrepute unle ss we remanded.” GonzalezHuerta , 2005 WL 807008, at *9.

III. CONCLUSION For the reasons stated above, we AFFIRM Mr. Perez-H ernandez’s conviction and sentence. Entered for the Court,
Robert H. Henry Circuit Judge