* This order and judgment is not binding precedent, except under the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

### December 8, 2005

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 04-4196

v. (D. Utah) JOEL MOSQUEDA-RAMIREZ,

Defendant-Appellant. (D.C. No. 2:04-CR-135-DAK)

ORDER AND JUDGMENT *

Before HENRY , HARTZ , and TYMKOVICH , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist 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. In June 2004, Joel Mosqueda-Ramirez pleaded guilty to one count of possession with intent to distribute 50 grams or mo re of a mixture of substance containing methamphetamine, in violation of 21 U.S. C. § 841(a)(1) and 18 U.S.C.-2-

§ 2. The district court examined a toxicology repo rt and found that he possessed 165.3 grams of “actual” methamphetamine. This amou nt was different from and greater than the amount admitted in the plea agreem ent. The district court subsequently sentenced Mr. Mosqueda-Ramirez to 87 m onths’ imprisonment. It also stated it would an impose an identical “back up” sentence in case the Guidelines were invalidated. Mr. Mosqueda-Ramirez claims that the district court violated his Fifth Amendment right to an indictmentand his Sixth Amendment right to a jury trial by relying on its own factual determinations of drug quantity to enhance his sentence. We exercise jurisdiction under 28 U.S.C. § 1291. In light of the district court’s identical discretiona ry sentence, we conclude that the sentencing error was harmless, and therefore affirmthe district court’s sentence.

I. BACKGROUND Mr. Mosqueda-Ramirez stipulated in his plea agreeme nt that “[o]n March 2, 2004, [he] knowingly and intentionally possessed wi th intent to distribute more than 50 grams of a mixture or substance containing methamphetamine.” Rec. vol. 1, doc. 33, at 4 ¶ 12(a). The offense to which he pleaded guilty carries a mandatory minimum sentence of 5 years’ imprisonment , and a statutory maximum of 40 years’ imprisonment. See 21 U.S.C. § 841(b)(1)(B). The pre-sentence report (“PSR”) recommended a base offense level of 34, relying on a toxicology-3-

report that indicated a total drug mixture of 165.3 grams of actual methamphetamine. See U.S.S.G. § 2D1.1(c)(3). Citing Blakely v. Washington , 542 U.S. 296 (2004), Mr. Mosqueda-Ramirez objected to calculating the base offense level using any amount or purity of methamp hetamine in excess of or different than the 50 grams of mixture to which he pleaded guilty. At sentencing, the district court stated that “unti l the Tenth Circuit or the Supreme Court says that Blakely applies to the Federal Guidelines, my view is that it does not. But I give a back-up sentence un der the statute of convictions, which not surprisingly is usually about the same se ntence under the guidelines.” Rec. vol. III, at 3 (Sentencing Hr’g, dated Aug. 17 , 2004). The district court started with a base offense level of 34, correlated to the 165.3 grams of actual methamphetamine, and reduced the offense level to 2 9 after applying downward adjustments under the “safety valve,” see U.S.S.G. § 5C1.2, and for acceptance of responsibility, see U.S.S.G. § 3E1.1. Mr. Mosqueda-Ramirez reaffirmed his Blakely objection to the court’s calculation of his base of fense level. With a criminal history category I and adjusted off ense level of 29, the Guidelines range was 87 to 108 months. The distric t court sentenced him to 87 months’s imprisonment, followed by 48 months’ supervised release. After sentencing Mr. Mosqueda-Ramirez under the Guideline s, the district court stated that “[t]he back-up sentence under the statute is a lso 87 months with 48 months-4-

supervised release.” Rec. vol. III, at 12.

II. DISCUSSION On appeal, Mr. Mosqueda-Ramirez claims that the d istrict court violated his Fifth Amendment right to an indictment and his Sixth Amendment right to a jury trial. A. Fifth Amendment claim We first quickly dispense with Mr. Mosqueda-Ramirez ’s alleged Fifth Amendment violation from an enhancement based on ju dge-found facts not alleged in the indictment. The Supreme Court held in United States v. Cotton , 535 U.S. 625, 632 (2002) that a sentencing court vi olates the Fifth Amendment when it relies on a fact not alleged in the indictm ent to sentence a defendant above the statutory maximum. Here, the district court di d not sentence Mr. Mosqueda-Ramirez above the statutory maximum, and t hus did not commit Fifth Amendment error. B. Sixth Amendment claim Mr. Mosqueda-Ramirez next contends that the distric t court violated his rights under the Sixth Amendment when it sentenced him based on facts not in the indictment, stipulated, or proven to a jury. In United States v. Booker , 125 S. Ct. 738 (2005), the Supreme Court stated that sentencin g courts may commit two-5-

types of error when applying the then-mandatory Gui delines: constitutional and non-constitutional error. Constitutional Booker error occurs when a court “rel[ies] upon judge-found facts, other than those of prior convictions, to enhance a defendant’s sentence mandatorily,” in violation o f the Sixth Amendment. United States v. Gonzalez-Huerta , 403 F.3d 727, 731 (10th Cir. 2005) (en banc). A court commits non-constitutional Booker error when it “appl[ies] the Guidelines in a mandatory fashion, as opposed to a discretionary fashion, even 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. The district court committed constitutional error w hen it enhanced Mr. Mosqueda-Ramirez’s sentence based on its finding of drug quantity. Absent judge-found facts, his base offense level for at le ast 50 grams of a methamphetamine mixture would be 26. See U.S.S.G. § 2D1.1(c)(7). The increase from a base offense level of 26 to 34 resu lted from a finding of fact not admitted or determined by a jury, in violation of t he Sixth Amendment. The government maintains that the sentencing error was harmless because the district court announced an identical discretio nary sentence, and such an alternative sentence leaves no room for speculation that the court would have imposed a more lenient sentence had it treated the Guidelines only as advisory.-6-

However, according to Mr. Mosqueda-Ramirez, “[t]he trial court never entertained discretion in sentencing [him], nor pro vided the opportunity to him to present and argue factors outside the Guidelines wh ich might effect a ‘discretionary’ sentencing.” Aplt’s Reply Br. at 3

. Mr. Mosqueda-Ramirez preserved his Blakely objection below, and we thus review his constitutional sentencing error for harm lessness. See United States v. Labastida-Segura , 396 F.3d 1140, 1142-43 (10th Cir. 2005) (concludi ng that a Blakely objection sufficiently preserves a claim of error underBooker ). “Any error, defect, irregularity, or variance which does not affect substantial rights must be disregarded.” F ED
. R. C RIM . P. 52(a). “The burden of proving that an error does not affect substantial rights is upon th e beneficiary of the error–here, the government. If the error is of constitutional magnitude, as it is here, the government is required to prove the error was harml ess beyond a reasonable doubt.” United States v. Lang , 405 F.3d 1060, 1065 (10th Cir. 2005) (internal quotation marks omitted).
In Labastida-Segura , we concluded that a non-constitutional Booker error was not harmless when a defendant was sentenced at the bottom of the Guidelines range and the court did not indicate how it would i mpose a discretionary sentence “given the new legal landscape.” 396 F.3d at 1143. However, if the district court proposed an alternative sentence under a discretion ary Guidelines scheme, a-7-

remand for resentencing may not be necessary. For example, in United States v. Serrano-Dominguez , 406 F.3d 1221, 1223 (10th Cir. 2005), “the distri ct court announced an alternative sentence, which applied th e methodology suggested by Booker ” and considered the § 3553(a) factors. We deemed the non-constitutional error there to be harmless because “[t]he district court applied the sentencing methodology suggested in Booker and concluded that even if the Guidelines were not mandatory [the defendant] would receive the sam e sentence.” Id. at 1224. The holding of Serrano-Dominguez is instructive here, and we conclude that the district court’s error in sentencing Mr. M osqueda-Ramirez, even though of a constitutional magnitude, is harmless beyond areasonable doubt. See United States v. McCleary , No. 04-6316, 2005 WL 2746748 (10th Cir. Oct. 25, 2005) (concluding a constitutional sentencing error was h armless when the district court imposed an identical alternative sentence); see also United States v. Lee , 427 F.3d 881, 892 (11th Cir. 2005) (finding that “the govern ment has carried its burden of showing that the Bookerconstitutional error was harmless beyond a reasonable doubt” where “the district court explicitly stated that it would have given [the defendant] the same sentence whether the Guidelines were mandatory or advisory” and “the district court expressly conside red the 18 U.S.C. § 3553(a) sentencing factors”); United States v. Carasa-Vargas , 420 F.3d 733, 737 (8th Cir. 2005) (concluding that a constitutional sentencing error under Booker was-8-

harmless beyond a reasonable doubt when the distric t court proposed an identical sentence “in the event the enhancement or the Guide lines in their entirety were held inapplicable” and “the district court specific ally considered the sentencing factors set forth in 18 U.S.C. § 3553(a)(1)-(7)”). The district court provided Mr. Mosqueda-Ramirez wi th an identical “backup sentence under the statute” in case “the Tenth C ircuit or the Supreme Court says that Blakely applies to the Federal Guidelines.” Rec. vol. III, at 3. As a result, we are not in the “zone of speculation and conjecture,” as we were in Labastida-Segura, 396 F.3d at 1143, and “we do not need to read any tea leaves to determine what the district court would do on re mand,” Serrano-Dominiguez , 406 F.3d at 1223. “The district court’s alternativ e sentence makes clear that either in the absence of the Guidelines or in an ad visory Guidelines system, the district court would have imposed on [the defendant ] the same sentence as the mandatory Guidelines required.” United States v. Christopher , 415 F.3d 590, 594 (6th Cir. 2005). Finally, we reject Mr. Mosqueda-Ramirez’s argument that the district court erred by not expressly considering the factors outl ined in 18 U.S.C. § 3553(a) when it announced a back-up sentence. Even prior t o Booker , the Sentencing Reform Act instructed judges to consider the factor s outlined in 18 U.S.C. § 3553(a) when imposing sentences. See 18 U.S.C. § 3553(a) (“The court, in-9-

determining the particular sentence to be imposed, shall consider [those factors].”); see also United States v. Rines , 419 F.3d 1104, 1106 (10th Cir. 2005) (noting, in a case where the district court imposed an identical discretionary sentence, that “[i]t is true that the district court did not march through § 3553(a)’s sentencing factors, but we have never imposed such a requirement”). Further, the district court adopted many of the sen tencing recommendations of the PSR, which had analyzed relevant factors setforth in 18 U.S.C. § 3553(a). The PSR provided information about Mr. Mosqueda-Ram irez’s personal and family history, educational and vocational skills, employment record, and ability to pay. Rec. vol. IV, at 7-8. It also explained t he sentencing options regarding custody, supervised release, probation, fines, and restitution. Id. at 8-10. Furthermore, at sentencing, the district court waiv ed a fine because “the defendant does not have the ability to pay,” ordere d payment of a special assessment fee of $100, and recommended incarcerati on near the defendant’s family in Los Angeles. Rec. vol. III, at 12.

III. CONCLUSION Accordingly, we AFFIRM Mr. Mosqueda-Ramirez’s sente nce. Entered for the Court,-10- Robert H. Henry Circuit Judge