* This order and judgment is not binding precedent, e xcept under the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

### APR 25 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 04-2171ESEQUEIL SALAZARSAMANIEGA, Defendant-Appellant. (D.C. No. CR 01-1651 JP) (D. New Mexico)

ORDER AND JUDGMENT *

Before BRISCOE , HOLLOWAY , and MURPHY , 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 Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. This is an appeal by defendant Esequeil Salazar-Sam aniega of his sentence2

following a prior remand by this court for resenten cing. We again remand for resentencing. Defendant was found guilty of possessing cocaine wi th intent to distribute, in violation of 21 U.S.C. § 841 (a)(1) and (b)(1)(B ). He was sentenced to 78 months in prison, which included an upward adjustme nt for obstruction of justice resulting from the district court’s finding that he committed perjury at the suppression hearing. The district court reduced hi s sentence for acceptance of responsibility even though defendant forced the gov ernment to trial. On direct appeal, defendant contended the district court erre d in enhancing his sentence for obstruction of justice under U.S.S.G. § 3C1.1, in f ailing to apply the “safety valve” adjustment under U.S.S.G. § 5C1.2(5), and in refusing to conclude he was a “minor” or “minimal” participant under U.S.S.G. § 3B1.2. The government cross-appealed, contending the court erred in adjus ting his sentence downward for acceptance of responsibility under U.S.S.G. § 3E1.1 . In his direct appeal, which challenged only defendant’s sentence, this court af firmed on the issues raised by defendant, but remanded for resentencing based on t he government’s crossappeal. United States v. Salazar-Samaniega , 361 F.3d 1271 (10th Cir. 2004). On June 24, 2004, defendant was resentenced. The d istrict court applied the sentencing guidelines and determined the adjust ed guideline range was 30, the criminal history category was I, and the resulting guideline range was 97-1213

months. The court sentenced defendant at the botto m of the range to a term of 97 months. The United States Supreme Court filed its ruling in Blakely v. Washington , 128 S. Ct. 2531 (2004), on the same date that defen dant was resentenced. Counsel for defendant filed a Rule 35(a) motion to correct sentence on June 30, 2004, citing Blakelyand contending the district court had violated def endant’s Sixth Amendment rights by finding defendant had obs tructed justice by committing perjury. The court did not rule on the motion and defendant filed a notice of appeal challenging the sentence. While this case was pending on appeal, the United S tates Supreme Court filed its ruling in United States v. Booker , 125 S. Ct. 738 (2005), on January 12, 2005. Bookerheld that it applied to all direct criminal appeal s then pending. In response to the ruling, this court ordered the part ies in this case to file supplemental briefs to address Booker. The parties are in agreement that defendant has pro perly preserved Blakely/Bookererror and that a remand for resentencing under ourrecent decision in United States v. Labastida-Segura , 396 F.3d 1140, 1143 (10th Cir. 2005), (applying harmless error review) is required. Remanded for resentencing in accordance with Booker . The mandate shall4

issue forthwith. Entered for the Court Mary Beck Briscoe Circuit Judge