* After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. This Order and Judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel. The court generally disfa vors the citation of orders and judgments; nevertheless, an order and judgment 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 

### December 21, 2005
Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES of AMERICA, Plaintiff-Appellee, v. DAGOBERTO RAMOS-RUIZ, Defendant-Appellant. No. 04-2281 (D.C. No. CR-04-26-JB) (D. N.M.)

ORDER AND JUDGMENT *
Before EBEL , HENRY and MCKAY , Circuit Judges.
Defendant-Appellant Dagoberto Ramos-Ruiz pleaded gu ilty to illegal reentry after deportation following an aggravated f elony. On appeal, he alleges that he is entitled to be resentenced in light of U nited States v. Booker , 543 U.S.- 2 -

220 (2005), because the district court mandatorily imposed a sentence according to the Federal Sentencing Guidelines. We disagree. I. Factual Background On October 4, 2003, United State Boarder Patrol age nts encountered Mr. Ramos in southwestern New Mexico near the Santa Ter esa Port of Entry. Ramos told the agents he was a citizen of Honduras, and i mmigration records revealed that he had been deported from the United States on three previous occasions. Prior to his most recent deportation, Mr. Ramos had been convicted of assault with a deadly weapon in California state court. On January 8, 2004, a federal grand jury indicted M r. Ramos for illegal reentry after deportation following an aggravated f elony, and Mr. Ramos pleaded guilty to the indictment on March 8, 2004. The PSRassigned a base offense level of eight to Mr. Ramos’ conviction pursuant to U.S.S .G. § 2L1.2(a). It then assigned a sixteen-level enhancement, pursuant to § 2L1.2(b)(1)(A)(iii), because Mr. Ramos had been convicted of a crime of violence —assault with a deadly weapon—and a three-level reduction for acceptance o f responsibility pursuant to § 3E1.1. With a criminal history category III, Mr. Ramos’ Guideline sentencing range was forty-six to fifty-seven months in prison . Mr. Ramos objected to the PSR based on Blakely v. Washington , 542 U.S. 296 (2004).1 The record does not indicate that any constitutio nal Bookererror

occurred, and Mr. Ramos raises only non-constitutio nal in his appeal. - 3 - At the sentencing hearing, the district court overr uled Mr. Ramos’ Blakely objection. The court then adopted the PSR’s recomm endations and sentenced Mr. Ramos to forty-six months in prison, the low end of the Guideline range. The court also imposed an alternative sentence in the e vent the Guidelines were found unconstitutional of forty-six months in prison. Mr . Ramos timely filed his appeal. II. Discussion Sentencing Mr. Ramos pre-Booker , the district court committed nonconstitutional Booker error by applying the Guidelines in a mandatory fa shion. 1 See United States v. Gonzales-Huerta , 403 F.3d 727, 731 (10th Cir. 2005) (en banc). Mr. Ramos preserved that error by raising a Blakely objection. See United States v. Labastida-Segura , 396 F.3d 1140, 1142-43 (10th Cir. 2005). We therefore review for harmless error. Id. Non-constitutional Bookererror is harmless when “we are not required to engage in any speculation . . . because the distric t court explained exactly what it would do if the Guidelines were found unconstitutio nal.” United States v. Corchado , 427 F.3d 815, 821 (10th Cir. 2005). Thus, where, as here, the district court imposes an alternative sentence in a sentenci ng regime in which the guidelines are advisory rather than mandatory and t hat sentence is identical to the- 4 -

sentence imposed under a mandatory Guideline regime , non-constitutional error does not warrant a remand. See United States v. Serrano-Dominguez , 406 F.3d 1221, 1223-24 (10th Cir. 2005). “Although the dist rict court did not specify that it was applying the sentencing methodology suggeste d in Booker—namely consultation of the advisory Guidelines and the fac tors listed in 18 U.S.C. § 3553(a)—we know that the court consulted the Guid elines and adopted the findings in the PSR, which analyzed several of the factors set forth in 18 U.S.C. § 3553(a)” in sentencing Mr. Ramos. See id. ; see also United States v. Rines , 419 F.3d 1104, 1107 (10th Cir. 2005), pet. for cert. fi led (U.S. Nov. 14, 2005) (No. 05-7719) (recognizing that the district court need not “march through § 3553(a)’s sentencing factors” before we uphold a sentence). III. Conclusion Because the district court announced an identical a lternative sentence, which applied the methodology suggested in Booker , we AFFIRM Mr. Ramos’ sentence.

ENTERED FOR THE COURT

David M. Ebel- 5 - Circuit Judge