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

### January 30, 2006
Elisabeth A. Shumaker Clerk of Court PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. RAUL CORNELIO-PENA, also known as Raul Puente-Cuevas,

Defendant-Appellant. No. 04-3478

Appeal from the United States District Court

for the District of Kansas (D.C. No. 04-CR-40090-SAC)

Ronald E. Wurtz, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, with him on the brief), Topeka, Ka nsas, for DefendantAppellant. James A. Brown, Assistant United States Attorney (E ric F. Melgren, United States Attorney, with him on the brief), Topeka, Kansas, f or Plaintiff-Appellee.

Before KELLY, BALDOCK, and MURPHY, Circuit Judges.

MURPHY , Circuit Judge.1 Under Arizona law, a person commits solicitation “i f, with the intent to

promote or facilitate the commission of a felony ormisdemeanor, such person commands, encourages, requests or solicits another person to engage in specific -2- I. Introduction Defendant-Appellant Raul Cornelio-Pena was convicte d in the United States District Court for the District of Kansas of illegal reentry following deportation. The district court sentenced him to f ifty-seven months’ custody, based in part on a sixteen-level enhancement for pr ior deportation after a conviction for a felony crime of violence. The dis trict court reasoned that solicitation to commit burglary of a dwelling is a crime of violence under U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii) ( 2003) (“USSG” or “Guidelines”). The district court also imposed an identical alternative sentence of fifty-seven months in the event the Guidelines were declared unconstitutional. Cornelio-Pena appealed his sentence. We have juris diction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Because solicitati on to commit burglary of a dwelling is a crime of violence under USSG § 2L1.2, and the district court’s imposition of an alternative sentence rendered its non-constitutional Booker error harmless, we affirm

. II. Background In 1992, Cornelio-Pena, a citizen of Mexico, was co nvicted in Arizona of solicitation to commit burglary in the second degre e. 1 He received three years’conduct which would constitute the felony or misdem eanor or which would

establish the other’s complicity in its commission. ” Ariz. Rev. Stat. § 13-1002. A person commits burglary in the second degree if h e “enter[s] or remain[s] unlawfully in or on a residential structure with th e intent to commit any theft or any felony therein.” Id. § 13-1507. -3- probation and was deported. Subsequently, Cornelio -Pena returned to the United States and was charged with, and pleaded guilty to, illegal reentry following deportation in violation of 8 U.S.C. § 1326(a). Atsentencing, the district court applied § 2L1.2 of the November 5, 2003 version of the Guidelines. CornelioPena’s base offense level was eight. The district court applied a sixteen-level enhancement pursuant to USSG § 2L1.2(b)(1)(A)(ii), reasoning that solicitation of burglary is a crime of violence. The district court also applied a three-level downward adjustment for acceptance of responsibility and entry of a guilty plea, bringing Cornelio-Pena’s adjusted offense level to twenty-one. Cornelio-Pena’s criminal history category was determined to be IV, resulting in a Guidelines range of fifty-seven to seventy-one months. The districtcourt sentenced Cornelio-Pena to fifty-seven months’ custody. Recognizing the un certainty surrounding the constitutionality of the Guidelines at the time of Cornelio-Pena’s sentencing, the district court also announced an alternative senten ce of fifty-seven months.
III. Discussion A. Crime of Violence-4-

Cornelio-Pena first argues the district court erredin concluding solicitation of burglary is a crime of violence under USSG § 2L1 .2(b)(1)(A)(ii). We review a district court’s interpretation of the Guidelines de novo

. United States v. TorresRuiz , 387 F.3d 1179, 1180–81 (10th Cir. 2004). “Genera lly speaking, we interpret the Sentencing Guidelines according to ac cepted rules of statutory construction. In interpreting a guideline, we lookat the language in the guideline itself, as well as at the interpretative and explan atory commentary to the guideline provided by the Sentencing Commission. Commentary in the Guidelines Manual that interprets or explains a guideline is authorit ative unless it violates the Constitution or a federal statute, or is inconsiste nt with, or a plainly erroneous reading of, that guideline.” Id. at 1181 (citations, quotations, and alteration omitted). It is uncontested that burglary of a dwelling is a crime of violence under USSG § 2L1.2(b)(1)(A)(ii). We must decide whether solicitation to commit burglary of a dwelling is also a crime of violence under this provision. This issue is one of first impression in the Courts of Appeals

. Section 2L1.2(b)(1)(A)(ii) of the Guidelines provid es for a sixteen-level enhancement if the defendant was previously deporte d, or unlawfully remained in the United States, after a conviction for a felony crime of violence. “Crime of violence” is defined in the section’s commentary as-5-

any of the following: murder, manslaughter, kidnapp ing, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension o f credit, burglary of a dwelling, or any offense under federal, state, orlocal law that has as an element the use, attempted use, or threatened use of physical force against the person of another. USSG § 2L1.2 cmt. application n.1(B)(iii). Application Note 5 further provides that “[p]rior convictions of offenses counted undersubsection (b)(1) include the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses.” Id . § 2L1.2 cmt. application n.5. Cornelio-Pena argues that because solicitation is n ot expressly mentioned in the application note, solicitation of a crime that otherwise meets the definition of “crime of violence” is not itself a crime of violen ce under the canon of statutory construction expressio unius est exclusio alterius (the expression of one thing is the exclusion of another). Cornelio-Pena cites United States v. Cardenas , in which this court held that 18 U.S.C. § 924(c) does not prohibit transportation of firearms. 864 F.2d 1528, 1534 (10th Cir. 1989). I n Cardenas , we noted that the statute at issue expressly prohibited only using orcarrying a firearm during a drug trafficking offense. Id. Moreover, we found it persuasive that another pr ovision of the same statute used the term “transport” in cr iminalizing the transportation of firearms in interstate commerce. Id. Thus, we concluded Congress knew how to use the term “transport,” and Congress’ failure to include the term in the relevant2 The term “solicitation” is used in the Guidelines i n three ways. First,

solicitation is included in the section of the Guid elines relating to “Other Offenses,” along with conspiracy and attempt. USSG § 2X1.1. This provision requires the application of the base offense level for the underlying offense, plus any adjustments for specific offense characteristic s relating to the fact that the crime was inchoate. Id . The provision is only to be applied when the cri me of solicitation is not expressly covered by another of fense guideline section. Id. § 2X1.1(c)(1); see also, e.g. , id . § 2A4.1 cmt. application n.4 (referencing adjustments in USSG § 2X1.1 with respect to conspir acy, attempt, or solicitation to kidnap). Second, the Guidelines specifically in clude solicitation of certain offenses as offense conduct. E.g ., id . § 2C1.1 (Soliciting a Bribe); id . § 2A1.5 (Solicitation to Commit Murder). Finally, solicitation appears in the commentary to several Guidelines’ provisions. Although none o f these provisions are identical to the application note at issue here, they are sim ilar in that they require solicitation to be treated like the underlying offe nse in certain circumstances. Id

. § 1B1.3 cmt. application n.6 (“Unless otherwise spe cified, an express direction to apply a particular factor only if the defendant was convicted of a particular statute includes the determination of the offense level whe re the defendant was convicted of conspiracy, attempt, solicitation, aiding or abe tting, accessory after the fact, or misprision of felony in respect to that particular statute”); id . § 1B1.3 cmt. application n.10 (“In the case of solicitation, mis prision, or accessory after the fact, the conduct for which the defendant is accoun table includes all conduct relevant to determining the offense level for the u nderlying offense that was known, or reasonably should have been known, by the defendant.”); id . § 2C1.1 cmt. background (“solicitations and attempts [to co mmit bribery] are treated as equivalent to the underlying offense”).

-6- statutory provision indicated its intent not to pro hibit the transportation of firearms during a drug trafficking offense. Id . at 1534. The term “solicitation” is used throughout the Guid elines, 2 and thus it is clear the Sentencing Commission knew how to use the term. The Commission’s failure to include solicitation in the application note in § 2L1.2, however, is not-7-

dispositive of the Commission’s intent in this case . Unlike the statute in Cardenas , which expressly criminalized only using or carryi ng a firearm, the application note at issue here uses the term “inclu de” before listing aiding and abetting, conspiracy, and attempt. USSG § 2L1.2 cm t. application n.5. We must give effect to the term “include.” See Chickasaw Nation v. United States , 534 U.S. 84, 94 (2001). “Include” can be interpreted both as a word of illu strative application and as a word of limitation. Black’s Law Dictionary 76 3 (6th ed. 1990). The commentary to the Guidelines’ general application p rinciples, however, expressly states that “[t]he term ‘includes’ is not exhaustiv e.” USSG § 1B1.1 cmt. application n.2. Thus, by using the term “include” in the application note, the Commission clearly expressed its intent that the of fenses listed in the note were not exhaustive, and we do not apply expressio unius est exclusio alterius

. Instead, based on the Commission’s articulation, of fenses similar to aiding and abetting, conspiring, and attempting to commit offe nses that otherwise meet the definition of “crime of violence” are included in § 2L1.2(b)(1)(A)(ii). Although no circuit has addressed the crime of soli citation under USSG § 2L1.2, several circuits have addressed solicitationunder § 4B1.1, a similarly constructed provision of the Guidelines. Section 4 B1.1 provides for sentencing enhancements for career offenders. A career offend er is defined as a person who,-8-

inter alia , “has at least two prior felony convictions of eit her a crime of violence or a controlled substance offense.” Id . § 4B1.1(a). Similar to the application note at issue in this case, the career offender pro vision contains an application note which states, “‘[c]rime of violence’ and ‘cont rolled substance offense’ include the offenses of aiding and abetting, conspi ring, and attempting to commit such offenses.” Id . § 4B1.2 cmt. application n.1. In United States v. Shumate , the Ninth Circuit examined whether solicitation of delivery of marijuana qualifies as a controlled substance offense under the career offender provision. 329 F.3d 1026, 1028 (9th Cir. 2003). The court reasoned that the omission of solicitation from the offenses listed in the application note wa s not legally significant because, under the Guidelines, the term “includes” is not exhaustive. Id. at 1030–31. Thus, the court concluded solicitation of delivery of marijuana is a controlled substance offense. Id

. The Sixth Circuit reached the opposite result in United States v. Dolt when it concluded that solicitation to traffic in cocain e is not a controlled substance offense under the career offender provision. 27 F. 3d 235, 240 (6th Cir. 1994). The court noted that “the fact that the Sentencing Commission did not include solicitation in its list of predicate crimes in [th e application note] is evidence that it did not intend to include solicitation as a pred icate offense for career offender
status.” Id. at 239. The court, however, did not address the use of the term3 Two circuits have held that solicitation is a crime of violence under the

career offender provision. United States v. Cox , 74 F.3d 189, 190 (9th Cir. 1996) (solicitation of murder); United States v. Walker , 181 F.3d 774, 780–81 (6th Cir. 1999) (solicitation to commit aggravated robbery). These decisions are not persuasive in this case, however, because the defin ition of “crime of violence” in the career offender provision is substantially diff erent than that contained in USSG § 2L1.2. Under the career offender provision, a crime of violence includes, inter alia , “any offense . . . that . . . involves conduct th at presents a serious potential risk of physical injury to anothe r.” USSG § 4B1.2(a). The holdings in Coxand Walkerare based, at least in part, on this definitional wording. Cox , 74 F.3d 190 (observing that “ask[ing] someone to murder your wife . . . involves a high degree of threat of phys ical force against one’s wife”); Walker , 181 F.3d at 781 (“solicitation to commit aggravat ed robbery [in Tennessee] inherently involves conduct that present s a serious potential risk of injury to another”). But see United States v. Shumate , 329 F.3d 1026, 1030 (9th -9- “include” or the definition of that term provided i n the Guidelines’ general application principles. See Shumate , 329 F.3d at 1031. Finally, the Second Circuit has implicitly conclude d that because of the term “include,” the list of offenses in the application note to the career offender provision is merely illustrative. United States v. Liranzo , 944 F.2d 73, 79 (2d Cir. 1991). In Liranzo , the Second Circuit examined whether criminal faci litation of the sale of cocaine is a controlled substance offen se. Id. at 78–79. Although the court ultimately concluded criminal facilitation is not sufficiently similar to aiding and abetting, conspiracy, and attempt to be encompassed by the application note, it observed that the application note “may no t be an exhaustive list” and proceeded to decide “whether . . . criminal facilit ation should be included in that list.” 3 Id. at 79.Cir. 2003) (arguing that Coxrelied on the use of “include” in the application note

to conclude solicitation was a crime of violence). Additionally, Cornelio-Pena argues our decision sho uld be informed by Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997), and Leyva-Licea v. INS, 187 F.3d 1147 (9th Cir. 1999). In these cases, the Ninth Circuit concluded that Arizona’s solicitation statute is not a law relatin g to a controlled substance or an aggravated felony under § 241(a)(2) of the Immigrat ion and Nationality Act when the underlying offense solicited is a narcotics vio lation. Coronado-Durazo , 123 F.3d at 1326; Leyva-Licea , 187 F.3d at 1150. These cases are inapposite, however, because the statutory definition at issue did not contain expansive language similar to the term “include” used in the Guidelines. Leyva-Licea , 187 F.3d at 1150 (“the Controlled Substances Act neithe r mentions solicitation nor contains any broad catch-all provision that could e ven arguably be read to cover solicitations”).

4 This court’s determination of whether solicitation of burglary is a crime of violence under the Guidelines is not dictated by Ar izona state law regarding whether solicitation is a crime of communication ora crime of violence. In Taylor v. United States , the Supreme Court rejected the contention that th e term “burglary” in the Armed Career Criminal Act “means ‘burglary’ however a state chooses to define it.” 495 U.S. 575, 579, 592 (199 0) (quotation omitted). Instead, the Court concluded Congress intended burg lary to mean generic burglary -10- In any event, because the Guidelines expressly prov ide that the term “include” is not exhaustive, crimes of violence und er USSG § 2L1.2 are not limited to aiding and abetting, conspiring, and att empting to commit offenses that otherwise meet the definition of “crime of violence .” Instead, crimes of violence include offenses that are sufficiently similar to a iding and abetting, conspiracy, and attempt when the underlying offense is a crime of violence. Thus, we must now decide whether solicitation is sufficiently sim ilar to aiding and abetting, conspiracy, and attempt, such that solicitation to commit burglary of a dwelling is a crime of violence. 4as currently defined in the criminal codes of most states. Id . at 598. The Court

reasoned: “[i]t seems to us to be implausible that Congress intended the meaning of ‘burglary’ . . . to depend on the definition ado pted by the State of conviction”; such a conclusion would lead to “the unfairness of having enhancement [under Federal law] depend upon the label employed by the State of conviction.” Id. at 589–90; cf

. Dickerson v. New Banner Inst., Inc. , 460 U.S. 103, 119–20 (1983) (noting that state law that expunged conviction aft er completion of probation did not erase conviction for purposes of Gun Control Ac t because “federal program would be impaired if state law were to control”); United States v. Nardello , 393 U.S. 286, 293–95 (1969) (prohibition of extortion i n violation of state law in the Travel Act is not limited to only those extortionat e activities that a particular state defines as extortion). Similarly, state law charac terizations of solicitation are irrelevant to our analysis of whether generic solic itation is a crime of violence under the Guidelines. The purpose of the Sentencin g Commission is to provide “certainty and fairness” in sentencing and to avoid “unwarranted sentencing disparities.” 28 U.S.C. § 991(b)(1)(B). Dependenc e on state law characterizations of what constitutes a crime of vi olence would inhibit these objectives. -11- A person commits solicitation if he commands, encou rages, requests, or solicits another person to commit a crime with the intent to promote the commission of that crime. E.g. , Ariz. Rev. Stat. § 13-1002; Model Penal Code § 5.02. As with most crimes, solicitation requires b oth mens rea and actus reus

. Because the mens reaand actus reus required for solicitation are similar to those required for aiding and abetting, conspiracy, and attempt, we conclude that solicitation is sufficiently similar to the offense s listed in the application note to be encompassed by the note. Conspiracy involves an agreement between two or mor e people for the purpose of promoting or committing a crime. E.g. , United States v. Small , 423-12-

F.3d 1164, 1182 (10th Cir. 2005); Model Penal Code § 5.03. Additionally, in some jurisdictions, conspiracy requires an overt ac t in furtherance of the conspiracy. Compare United States v. Taylor , 413 F.3d 1146, 1155 (10th Cir. 2005) (providing that conspiracy requires intent to commit crime and overt act in furtherance of that intent) and Neb. Rev. Stat. § 2 8-202 (stating that overt act is element of conspiracy) with Nev. Rev. Stat. § 199.490 (providing that overt ac t is not required for conspiracy to commit, inter alia , murder, robbery, and sexual assault) and Model Penal Code § 5.03(5) (stating no overt act requirement for felony of the first or second degree). We need notdecide whether generic conspiracy under the Guidelines requires an overt a ct, however, to decide this case. Even where an overt act is required, the ove rt act can be that of any member of the conspiracy. E.g. , Neb. Rev. Stat. § 28-202(b); Model Penal Code § 5.03(5). A defendant need not perform an act bey ond mere agreement in order to be guilty of conspiracy, so long as one conspirator performs an overt act. Thus, both conspiracy and solicitation require onlyintent that the underlying offense be committed and a minimal act such as agre eing or soliciting. Moreover, in some instances, conspiracy may be regarded as le ss severe than solicitation. A conspiracy is frequently formed between individuals who have already formed the intent to commit the underlying crime. People v. Kauten , 755 N.E.2d 1016, 1019 (Ill. App. Ct. 2001). Solicitation, on the other h and, may involve the recruitment-13-

of one who has not yet formed criminal intent. Id. at 1020. Because conspiracy and solicitation have similar mens rea and actus reus requirements and are of similar severity, they are sufficiently similar to be included together in the application note. A defendant is guilty of attempt if he intends to c ommit a crime and takes a substantial step toward the commission of that crim e. E.g. , United States v. Haynes , 372 F.3d 1164, 1167 (10th Cir. 2004); Model Penal Code § 5.01. Thus, to be guilty of attempt a defendant must intend to commit the crime himself, while for solicitation a defendant need only intend that another person commit the crime. This difference, however, carries little pr actical distinction because in both instances, the defendant intends that the unde rlying crime be accomplished. Additionally, although the actus reus requirement for an attempt must go beyond mere preparation, it need not be a greater act than that required for solicitation. In many jurisdictions, soliciting another person to engage in criminal conduct can satisfy the substantial step requirement for an att empt. Model Penal Code § 5.01(2)(g); United States v. Am. Airlines, Inc. , 743 F.2d 1114, 1120 n.10 (listing states where solicitation can constitute an attempt ). Thus, attempt and solicitation also have similar mens rea and actus reus requirements. Aiding and abetting requires an intent to facilitat e the commission of a crime, affirmative conduct furthering the commissio n of that crime, and proof that5 The notion that attempt, conspiracy, and solicitati on are of similar severity,

while aiding and abetting is more serious, is impli cit in the Guidelines. Section 2X1.1 of the Guidelines provides for a three-level decrease in the offense level of a defendant convicted of attempt, conspiracy, or so licitation of a crime so long as the crime was not completed or was incomplete as a result of apprehension. USSG § 2X1.1(b). The portion of the provision relating to solicitation was amended in 1989 to be identical to the portions reg arding attempt and conspiracy “to clarify the treatment of [solicitation] in a ma nner consistent with the treatment of attempts and conspiracies.” U.S. Sentencing Gui delines Manual app. C amend. 238. The treatment of aiding and abetting in the G uidelines, however, is more harsh. Instead of decreasing the offense level, th e offense level for aiding and -14- the underlying crime was in fact committed. United States v. Sarracino , 131 F.3d 943, 946 (10th Cir. 1997). While the mens rea and actus reus requirements for aiding and abetting and solicitation are similar, a iding and abetting requires an additional element not present in solicitation. Ai ding and abetting requires the actual commission of the underlying offense. As aninchoate crime, however, solicitation does not. Instead, if a person who is solicited to commit a crime actually engages in criminal conduct, the solicitorbecomes culpable as an accomplice for the underlying crime. Model Penal C ode § 2.06(1)–(3). Because aiding and abetting requires commission of the unde rlying offense, aiding and abetting and solicitation have important distinctio ns. Aiding and abetting in the application note, however, is only one offense in t he illustrative list including the inchoate crimes of conspiracy and attempt. Because solicitation is at least as similar to conspiracy as aiding and abetting is to conspiracy, solicitation should be included in the list. 5abetting is the same as that for the underlying off ense. Id. § 2X2.1. -15- In Liranzo , the Second Circuit held that criminal facilitatio n is not sufficiently similar to aiding and abetting, conspi racy, and attempt to qualify as a controlled substance offense under the Guidelines’ career offender provision. 944 F.2d at 79. Although we do not express any opinionas to the correctness of the Second Circuit’s decision in Liranzo , the case is elucidative because the differences the court identifies between facilitati on and the offenses listed in the application note do not similarly distinguish solic itation from those offenses. The court in Liranzo reasoned that, unlike aiding and abetting, conspir acy, and attempt, facilitation does not involve an intent to commit the underlying offense; rather, it requires only that the defendant know hi s conduct is aiding in the commission of a crime. Id . Solicitation, on the other hand, requires that t he defendant intend that the underlying crime be commi tted. Moreover, in Liranzo , the court reasoned that a “facilitator’s conduct . . . is . . . so attenuated from the final stages [of commission of the crime] that the role of the facilitator is only remotely related as a cause or contributor to the u ltimate crime.” Id . This attenuation is not present with solicitation. Soli citation seeks to induce the commission of a crime, and thus is the original, di rect cause of the crime if it is subsequently committed.-16-

Because the offenses listed in Application Note 5 t o USSG § 2L1.2 are merely illustrative, and solicitation is sufficient ly similar to the listed offenses to be encompassed by the application note, we conclude that solicitation of an offense that otherwise meets the definition of “cri me of violence” is also a crime of violence. Therefore, the district court did noterr in applying a sixteen-level enhancement to Cornelio-Pena’s sentence.
B. Constitutional BookerError Cornelio-Pena next argues the district court committed constitutional Bookererror when it found facts not admitted by the defe ndant or proved to a jury beyond a reasonable doubt in determining that Corne lio-Pena’s prior conviction for solicitation of burglary was a crime of violenc e. This argument, however, is foreclosed by our recent decision in United States v. Moore . 401 F.3d 1220 (10th Cir. 2005). In Moore , we held that “scrutinizing the statutory definiti on of a prior offense to ascertain if it [is a “violent felony” u nder the Armed Career Criminal Act] involves a question of law for a court to deci de, and not a question of fact for a jury.” 401 F.3d at 1224. As a question of l aw, a district court’s determination that a prior conviction is a “violentfelony” does not implicate the Sixth Amendment concerns addressed in Booker

. Id . at 1225; see United States v. Booker , 125 S. Ct. 738 (2005). Moreover, we recognized that because determining whether a prior conviction is a “violent felony” involves an inquiry6 In a Rule 28(j) letter, Cornelio-Pena argues that t he Fourth Circuit’s

decision in United States v. Washington should inform our analysis. 404 F.3d 834 (4th Cir. 2005). Washington dealt with the applicability of the Sixth Amendmen t when a district court relies on information beyond the documents permitted by Shepard v. United States in determining that a prior conviction is a crime of violence. Washington , 404 F.3d at 841–42; Shepard, 125 S.Ct. 1254, 1263 (2005). Washington is inapplicable to the present case, however, beca use here the district court relied only on the fact of convictio n and the statutory definition of solicitation to commit second degree burglary in de termining Cornelio-Pena’s prior conviction was for a crime of violence. See United States v. Moore , 401 F.3d 1220, 1225 n.2 (10th Cir. 2005); United States v. Collins , 412 F.3d 515, 522–523 (4th Cir. 2005). -17- intimately related to whether a prior conviction ex ists, Apprendi ’s exception for prior convictions applies to the inquiry of whethera prior conviction constitutes a “violent felony” as well. Id .; Apprendi v. New Jersey , 530 U.S. 466 (2000). The same principles apply to enhancements under the Gui delines. Therefore, the district court did not commit constitutional Bookererror in determining that Cornelio-Pena’s prior conviction for solicitation o f burglary was a crime of violence. 6
C. Non-Constitutional BookerError Cornelio-Pena also challenges his sentence under Bookerbecause the district court viewed the Guidelines as mandatory. Under Booker , the district court’s mandatory application of the Guidelines was erroneous. 125 S.Ct. at 764. Although Cornelio-Pena was sentenced before the Sup reme Court’s decision in Booker , he objected to the application of the Guidelines under Blakely v.-18-

Washington at his sentencing hearing. 542 U.S. 296 (2004). T hus, our review is for harmless error. United States v. Labastida-Segura , 396 F.3d 1140, 1142–43 (10th Cir. 2005). Under the harmless error analysi s, we must remand for resentencing unless we determine, “without undue sp eculation, that the district court would have imposed the same sentence on reman d.” United States v. Corchado , 427 F.3d 815, 821 (10th Cir. 2005). After announcing Cornelio-Pena’s sentence under a m andatory application of the Guidelines, the district court announced an alternative sentence. The district court stated, In the event that the Federal Sentencing Guidelines are found to be unconstitutional and incapable of being constitutio nally applied in this sentencing, then the Court will impose the fol lowing alternative sentence pursuant to 18 U.S.C. Section 3553(a), tre ating the guideline [sic] as advisory only: It is the judgment and order of the Court that the defendant is sentenced to the term o f 57 months, and all other conditions that the Court has indicated a re appropriate and shall be applied.
In United States v. Serrano-Dominguez , we held non-constitutional Booker error was harmless when the district court imposed an alternative sentence. 406 F.3d 1221, 1223–24 (10th Cir. 2005). Although the district court in SerranoDominguez explicitly applied the factors in 18 U.S.C. § 3553( a) as suggested by the Court in Booker , we have subsequently held that a district court n eed not explicitly examine each of the § 3553(a) factors so long as the court consults the Guidelines and the Presentence Investigation Report(“PSR”), which analyzes-19-

several of the § 3553(a) factors. Corchado , 427 F.3d at 821. The district court did not specifically discuss the § 3553(a) factors in this case. It did, however, consult the Guidelines and the PSR and consider Cornelio-Pena’s motion for a downward departure. Thus, the district court exami ned several of the § 3553(a) factors in imposing its alternative sentence. Beca use we are confident CornelioPena would receive the same sentence on remand, the district court’s error was harmless.
IV. Conclusion For the foregoing reasons, Cornelio-Pena’s sentence is AFFIRMED

.