* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1

United States Court of Appeals

Fifth Circuit

FILED

September 7, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-11057

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BENJAMIN DURAN-RUIZ,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:04-CR-00035-1

--------------------

Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit

Judges.

PER CURIUM:*

Defendant-appellant Benjamin Duran-Ruiz appeals his

sentence of 135 months of incarceration, a five year term

of supervised release, and a $100.00 special assessment.
No.04-11057 

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2

Pursuant to a plea agreement, Duran-Ruiz pleaded guilty

to count two of his indictment, possession of more than

one kilogram of heroin with intent to distribute. 

His presentence report (PSR) reflected post-arrest

statements made by defendant to DEA agents and task force

officers, as well as information given to the DEA by a

confidential source. None of these facts were alleged in

the indictment, stipulated to in the factual resume, or

admitted in his guilty plea. The PSR recommended his

base offense level be set at 38 under the United States

Sentencing Guidelines (USSG). It further recommended

that this base offense level be reduced because (1)

defendant met certain statutory criteria under the USSG;

and (2) defendant accepted responsibility. After these

adjustments, his total offense level was 33, which

carried a sentence range of 135-168 months. The court

sentenced defendant to 135 months of imprisonment, five

years of supervised release, and a $100 special

assessment. 

The district court then imposed an alternative

sentence “...made necessary by the possibility that the
No.04-11057 

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1 Defendant-appellant does not, in his appeal, address the

existence of the alternative sentence. 

3

federal sentencing guidelines may hereafter be declared

unconstitutional or otherwise inoperative and, as a

consequence, the primary judgment in this case reversed

on appeal or vacated and set aside pursuant to Title 28,

United States Code § 2255.” The judge provided that

“[t]he sentence is imposed pursuant to Title 18, United

States Code § 3553(a), taking the guidelines issued by

the United States Sentencing Commission pursuant to Title

28, United States Code § 994(a), as advisory only.” This

alternative sentence provided for ten years of

imprisonment, five years of supervised release, and a

special assessment of $100. 

Defendant-appellant appeals on the following bases:

(1) his sentence violates Blakely v. Washington,

542 U.S. 296 (2004) and U.S. v. Booker, 543 U.S.

220 (2005), in that it, in part, hinged on

evidence in the PSR that was not admitted by

defendant in his guilty plea nor decided by a

jury beyond a reasonable doubt;1 and
No.04-11057 

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4

(2) his sentence violates the Sixth Amendment’s

Confrontation Clause, as interpreted by Crawford

v. Washington, 541 U.S. 36 (2004), in that it

was based on the testimonial hearsay of DEA

agents and a confidential source contained in

his PSR. 

As to the first basis of appeal, the Government

concedes that Blakely and Booker are applicable to the

instant case and also that the error incurred was not

harmless. Therefore, the issue for this Court is whether

the sentence should be vacated and remanded or instead

whether the alternative sentence should be imposed.

As to the second basis, defendant’s argument is

foreclosed by United States v. Navarro, 169 F.3d 228, 236

(5th Cir. 1999), which held that “the constitutional

right to confront witnesses does not apply to non-capital

sentencing proceedings.” Accordingly, we consider only

his first basis. 

Analysis
No.04-11057 

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The limited, yet recent, case law from this Circuit

dictates that we vacate Duran-Ruiz’s sentence and remand

for resentencing.

In United State v. Adair, 436 F.3d 520 (5th Cir.

2006), the court sentenced the defendant under the thenmandatory sentencing guidelines to 240 months

imprisonment. The court levied an alternative sentence

of fifty-one months “should the sentencing guidelines

later be found to be unconstitutional in their

entirety....” This Court vacated the defendant’s

sentence and remanded to the district court for

resentencing in accordance with Booker based on the

similar case of United States v. Walters, 418 F.3d 461

(5th Cir. 2005). In both Adair and Walters, this Court

found that the condition for the alternative sentence,

that the sentencing guidelines be declared

unconstitutional in their entirety, did not occur. As

explained in those cases, Booker did not declare the

guidelines unconstitutional in toto but instead merely

rendered them advisory. Adair 436 F.3d at 528. These

cases suggest that if the alternative sentence lacked the
No.04-11057 

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condition that the guidelines be declared

unconstitutional in their entirety, then the alternative

sentence could be imposed, assuming any other conditions

are met.

However, United States v. Story, 439 F.3d 226 (5th

Cir. 2006), dispels the implications of both Walters and

Adair. In Story, the judge orally imposed two alternative

sentences. The first is the only one applicable. In the

relevant alternative sentence, the court imposed an

identical incarceration time as that provided in the

Guideline-governed sentence, in the event the Guidelines

“are declared to be unconstitutional.” Story, 439 F.3d

at 229. The judge did not mention the scope of the

declaration of unconstitutionality of the Guidelines,

i.e., it did not predicate the alternative sentence on a

declaration of unconstitutionality of the Guidelines in

their entirety, as did the judge in Adair and Walters.

In Story, the government argued that the case should

not be remanded for resentencing because the defendant’s

sentence fit within the first alternative sentence

pronounced by the district court. Stated differently,
No.04-11057 

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2 The court here is referring to Adair.

7

the government argued the condition was met because, it

alleged, Booker declared the Guidelines, to some extent,

unconstitutional. This court disagreed. Referencing

Adair, we stated, “[i]n a recent case2 in which a district

judge imposed similarly worded alternative sentences, we

found that the trigger for the first alternative

sentence, the Guidelines being declared unconstitutional

in their entirety, did not occur. Likewise, this trigger

did not occur to activate Story’s first alternative

sentence.” Id. at 233. (Internal citation omitted).

Although the district judge in Story predicated the

alternative sentence on the Guidelines being declared

unconstitutional and did not mention the scope of the

unconstitutionality, the Court still found the trigger

of the alternative sentence not met. 

Conclusion

Because of this court’s clarification of Adair in the

Story case, it is evident that the position of the Fifth

Circuit is that alternative sentences predicated on a

declaration of the unconstitutionality of the Sentencing
No.04-11057 

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Guidelines should not be imposed. Therefore, we vacate

the defendant’s sentence and remand the case for

resentencing.