*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand collateral estoppel. The court generally disfavors 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 

### August 16, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JOSE JESUS ROSALES-RIVERA, Defendant-Appellant. No. 04-1484 (D. Colorado) (D.Ct. No. CR-04-CR-90-B)

ORDER AND JUDGMENT *

Before KELLY , O’BRIEN , and TYMKOVICH , 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 Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Jose Jesus Rosales-Rivera pled guilty to illegal re entry after deportation following an aggravated felony conviction in violat ion of 8 U.S.C. § 1326(a) and1 The superseding indictment charged Rosales-Rivera with illegal reentry after

deportation following an aggravated felony conviction in violation of 8 U.S.C. § 1326(a) and (b)(2). Rosales-Rivera, a citizen of Mexico, was convicted of delivering a controlled substance (cocaine) in the District Court for Harris County, Texas, on March 12, 1992.This conviction is an “aggravated felony” as defined by 8 U.S.C. § 1101(a)(43). RosalesRivera was deported from the United States in December 1992 and again in June 1997.

2Because Rosales-Rivera was sentenced pursuant to the 2003 edition of the United States Sentencing Guidelines Manual, all guideline citations refer to the 2003 edition, unless noted otherwise. -2- (b)(2). He was sentenced to thirty-seven months imprisonment. Rosales-Rivera appeals his sentence arguing the district court com mitted plain error in treating the federal sentencing guidelines as mandatory in l ight of United States v. Booker , --U.S.--,125 S.Ct. 738 (2005). Exercising jurisdic tion under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we AFFIRM. I. Factual Background Rosales-Rivera was originally indicted on March 8, 2004. A superseding indictment was filed on April 5, 2004, charging the same statutory violation but alleging a different prior aggravated felony convic tion than the original indictment. 1 Rosales-Rivera pled guilty to the superseding ind ictment on September 2, 2004, and a Presentence Investigation Report (PIR) was prepared. Applying USSG §2L1.2(a), the guideline applicable f or illegal reentry, the probation officer determined the base offense level was 8. 2 The probation officer then increased the base offense level by 12 pursuan t to §2L1.2(b)(1)(B) because Rosales-Rivera was previously deported subsequent t o a conviction for a felony-3-

drug trafficking offense. The probation officer re duced the adjusted offense level by 3 for acceptance of responsibility pursuant to § 3E1.1(a) and (b), resulting in a total offense level of 17. Based on a total offens e level of 17 and a criminal history category of IV, the probation officer calcu lated the guideline range as thirty-seven to forty-six months imprisonment. The district court, finding no reason to depart either upward or downward from the guideline range, sentenced Rosales-Rivera to thirty-seven months imprisonment on November 10, 2004, and this appeal followed. II. Discussion
In Booker , the Supreme Court held that “[a]ny fact (other th an a prior conviction) which is necessary to support a sentenc e exceeding the maximum authorized by the facts established by a plea of gu ilty or a jury verdict must be admitted by the defendant or proved to a jury beyon d a reasonable doubt.” 125
S.Ct. at 756. Post- Booker , district courts must consult the guidelines in fashioning sentences but are not required to senten ce within the guideline range. United States v. Gonzalez-Huerta, 403 F.3d 727, 731 (10th Cir. 2005) (en banc). Constitutional Booker error occurs when the district court “re[lies] upo n judge-found facts, other than those of prior convic tions, to enhance a defendant's sentence mandatorily.” Id. By contrast, non-constitutional Booker error occurs when a sentencing court applies the guidelines in amandatory fashion, “even3 As this court noted in Gonzalez-Huerta, a guideline enhancement based on the

fact of a prior conviction does not implicate the Sixth Amendment under Booker

. See Gonzalez-Huerta , 403 F.3d at 731 n.1. -4- 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 conviction.” Id. at 731-32. Rosales-Rivera asserts only non-constitutional Booker error in his case. 3
Because he did not raise his Booker claim in the district court, we review for plain error. Id. at 732. “Plain error occurs when there is (1) err or, (2) that is plain, which (3) affects substantial rights, and wh ich (4) seriously affects the fairness, integrity, or public reputation of judici al proceedings.” Id. (internal quotation marks omitted). Undoubtedly, the first t wo prongs of the plain error test are satisfied. See United States v. Clifton, 406 F.3d 1173, 1181 (10th Cir. 2005) (“Non-constitutional and constitutional Booker errors satisfy the first two prongs of the plain-error test.”). As to the third prong, we need not answer the question whether Rosales-Rivera can show prejudice under the third prong because, even assuming he can, he cannot demonstrat e that the district court's error seriously affected the fairness, integrity, o r public reputation of judicial proceedings (the so-called “fourth prong” of the pl ain-error test). See United States v. Cotton, 535 U.S. 625, 632-33 (2002); Gonzalez-Huerta, 403 F.3d at 736. Non-constitutional Booker error does not merit reversal under the fourth-5-

prong of the plain-error standard unless it was “a particularly egregious one that would result in a miscarriage of justice or otherwi se call the judiciary into disrepute unless we remanded.” Gonzalez-Huerta, 403 F.3d at 739. In Gonzalez-Huerta , the defendant pled guilty to illegal reentry by a deported alien following an aggravated felony, the same crime at i ssue in this case. Id. at 730. He appealed his sentence, arguing that the mandatory application of the guidelines was plain error. Id. at 731. We held that the mandatory application of the guidelines was neither “particularly egregious” nora “miscarriage of justice” because the resulting sentence was within the natio nal norm as established by the guidelines and the record was devoid of any evidenc e indicating a lower sentence was appropriate. Id. at 738-39. Here, Rosales-Rivera pled guilty to the underlying offense and the district court enhanced his sentence based solely on a priorconviction. He received a sentence within the national norm as established by the guidelines and there is nothing in the record to indicate the district court would have chosen a lower sentence under an advisory rather than a mandatory guideline sentencing system. Thus, this case is indistinguishable from Gonzalez-Huerta. Rosales-Rivera has failed to show that the mandatory application of th e guidelines satisfies the fourth4Rosales-Rivera also asserts the district court committed structural error and we

should presume prejudice. However, these claims are without merit because we determined in Gonzalez-Huerta , that “non-constitutional Bookererror is not structural error” and the defendant “bears the burden to establish by a reasonable probability based upon the record on appeal that his substantial rights were affected by the District Court's mandatory application of the Guidelines.” Id. at 734, 736. -6- prong of the plain-error standard. 4
III. Conclusion For the reasons stated above, we AFFIRM Rosales-Rivera’s conviction and

sentence. Entered by the Court: Terrence L. O’Brien United States Circuit Judge