* This order and judgment is not binding precedent, e xcept under the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

### MAY 4 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 04-4145

v. (D. Utah) ANTONIO PINEDA-RODRIGUEZ,

Defendant - Appellant. (D.C. NO. 03-CR-758-DKW)

ORDER AND JUDGMENT *

Before TACHA, Chief Circuit Judge, ANDERSON , and BALDOCK , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist in 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.1 USSG §4A1.1(d) and (e) provide as follows:

(d) Add 2 points if the defendant committed the instant offe nse while under any criminal justice sentence, includin g probation, parole, supervised release, imprisonment, work rele ase, or escape status. (e) Add 2 points if the defendant committed the instant offe nse less than two years after release from imprisonmenton a sentence counted under (a) or (b) or while in impri sonment or escape status on such a sentence. If 2 points are added for item (d), add only 1 point for this item.

2 The applicable Guideline range was based upon a com bined adjusted (continued...) -2- Defendant-Appellant Antonio Pineda-Rodriguez pled g uilty to two counts of possession of a firearm by a restricted person, in violation of 18 U.S.C. § 922(g)(1) and (9), and one count of illegal reent ry following deportation, in violation of 8 U.S.C. § 1326(a). He was sentenced pursuant to the United States Sentencing Commission, Guidelines Manual (“USSG”), to eighty-four months’ imprisonment, the low end of the Guideline range, f ollowed by thirty-six months of supervised release. In calculating the Guideline sentencing range, the district court, as then required by USSG §4A1.1(d) and (e), added three cri minal history points to Pineda-Rodriguez’s criminal history because Pineda- Rodriguez committed the instant offenses while on court supervision for a p rior offense and within two years of having been released from custody for a di fferent prior offense. 1 This had the effect of increasing his criminal history c ategory from IV to V. 2 During2 (...continued)

offense level of 26, which was then adjusted downwa rd 3 levels for acceptance of responsibility, resulting in a total offense level of 23 which, with a criminal history category of V, yielded a Guideline range of 84 to 105 months. The maximum statutory penalty for his offenses was ten years. 18 U.S.C. § 924(a)(2); see also 8 U.S.C. § 1326(a) (providing a maximum penalty of two years). Thus, the Guideline sentence was less than that permitted by statute.

3 In his “Statement of Defendant in Advance of Guilty Plea” PinedaRodriguez admitted that at the time of the instant offenses, he “had been convicted of a felony offense (Domestic Violence in the Presence of a Child, a Third Degree Felony, Case No. 011912628, on January 14, 2002) and [he] had been convicted of a domestic-violence misdemeanor o ffense (e.g., Assault on a Pregnant Person, a Class A Misdemeanor, Case No. 01 1902888, on December 14, 2001) in Third District Court, State of Utah.” Statement at 4-5, R. Vol. I at doc. 13. -3- the plea proceedings Pineda-Rodriguez admitted and described his two prior convictions. 3 The district court, however, derived the dates an d sentences relating to those prior convictions from the Presentence Rep ort (“PSR”) prepared by the probation office, which in turn referenced records from the Utah state courts. Those dates and sentences on their face established the “less than two years after release” and “while [on] . . . probation” facts rel ated to the two admitted prior convictions. Pineda-Rodriguez did not object to any part of the PSR and he has never denied that he committed the instant offense while on probation or within two years of having been released from custody for a prior offense; he simply argues those facts should have been alleged in the indictment and proved to a jury.4 When Pineda-Rodriguez raised Blakely before this court, the Supreme

Court had not yet issued United States v. Booker , 125 S. Ct. 738 (2005). However, raising a Sixth Amendment Blakely argument was sufficient to invoke the Sixth Amendment holding in Bookeras well (applying Blakely ’s Sixth Amendment analysis to the federal Guidelines). Acc ordingly, we apply the Sixth Amendment analysis of both Bookerand Blakelyto this case. -4- On appeal, relying upon Blakely v. Washington , 124 S. Ct. 2531 (2004), 4 Pineda-Rodriguez argues for the first time that his Sixth Amendment rights were violated because the two facts described above (the length of probation and the date of release from custody, both relating to Pine da-Rodriguez’s admitted prior convictions) were found by the district court judge rather than charged in the indictment and found by a jury or admitted by the d efendant. After initial appellate briefing, Pineda-Rodriguez sought and was granted the right to brief the effect on this case of the Supreme Court’s subseque nt decision in United States v. Booker , 125 S. Ct. 738 (2005). Thus, he also argues that , regardless of any Sixth Amendment error, it was plain error under Bookerfor the district court to treat the Guidelines as mandating the sentence imposed, a nd that error requires a remand for resentencing.

DISCUSSION Blakelyand Bookerhave established that, for purposes of the Guideli nes, the Sixth Amendment requires that “[a]ny fact (othe r than a prior conviction)-5-

which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable d oubt.” Booker , 125 S. Ct. at
756. See United States v. Gonzalez-Huerta , No. 04-2045, 2005 WL 807008, at *1 (10th Cir. Apr. 8, 2005) (en banc). Bookerfurther held that the Guidelines are advisory rather than mandatory. The Court’s decisi on applies to all cases on direct review. Booker , 125 S. Ct. at 769. To resolve this appeal, we must address the followi ng questions: (1) does the “fact of a prior conviction” for purposes of Bl akelyand Bookerinclude the fact of the date and sentence of a prior conviction , and findings necessarily flowing therefrom (e.g. , whether the instant offenses were committed withi n two years of release from custody on a prior conviction and/or while the defendant was under court supervision from a prior conviction ); and (2) did the district court commit plain error when it sentenced Pineda-Rodrigu ez, pre-Booker , erroneously applying the Guidelines as mandatory. We affirm Pi neda-Rodriguez’s sentence.

I. Fact of Prior Conviction Pineda-Rodriguez argues that, under Blakely and Booker , the government must charge in an indictment or prove to a jury that the instant offenses were committed while he was under court supervision for a prior offense or within two-6-

years of his release from custody for a prior offen se. We disagree, concluding that those facts are within the exception to the Bl akely/ Bookerrule for the “fact of a prior conviction.” Blakely , 124 S. Ct. at 2536 (quoting Apprendi v. New Jersey , 530 U.S. 466, 490 (2000)). We have recently held that “Booker. . . and Shepard v. United States , 125 S. Ct. 1254 (2005), do not require the government t o charge in an indictment or prove to a jury either the existence of prior convi ctions or their classification as ‘violent felonies.’” United States v. Moore , 401 F.3d 1220, 1221 (10th Cir. 2005). In reaching that conclusion, we noted that the Supreme Court in Almendarez-Torres v. United States , 523 U.S. 224 (1998), held that because recidivism “is a traditional, if not the most tradi tional, basis for a sentencing court’s increasing an offender’s sentence,” id. at 243, and “as typical a sentencing factor as one might imagine,” id. at 230, there is no constitutional requirement for the government to charge an earlier conviction in a n indictment. The Supreme Court has also emphasized the importance of shieldi ng the jury from evidence of prior crimes for the obvious reason that “the intro duction of evidence of a defendant’s prior crimes risks significant prejudic e.” Id. at 235; see also Moore , 401 F.3d at 1223. And as we further observed in Mo ore , the Supreme Court has5 We note that Shepard has, however, further restricted the “fact of a pr ior

conviction” exception. The Court in Shepard held that, for purposes of determining whether a prior burglary conviction qua lifies as a “violent felony” under the Armed Career Criminal Act (“ACCA”), 18 U. S.C. § 924(e), “a later court determining the character of an admitted burg lary is generally limited to examining the statutory definition, charging docume nt, written plea agreement, transcript of plea colloquy, and any explicit factu al finding by the trial judge to which the defendant assented.” Shepard , 125 S. Ct. at 1257. A court may not look at police reports or complaint applications to make that determination. The Court in Sheparddid not, however, overrule Almendarez-Torres and its exception for facts of a prior conviction. -7- repeatedly affirmed its holding in Almendarez-Torre s , most recently in Booker and Shepard

. 5 See Moore , 401 F.3d at 1223-24. Pineda-Rodriguez challenges the scope of that holdi ng. In Moore , we cited approvingly other circuit court decisions concludin g that, for purposes of 18 U.S.C. § 924(e)’s requirement that a defendant’s th ree previous convictions be for violent felonies “committed on occasions different from one another,” the “different occasions” finding falls within the “fac t of a prior conviction” for Apprendi /Blakely/Bookerpurposes. Thus, the “facts” of the “different occ asions” need not be alleged in the indictment, or admitted by the defendant or submitted to a jury for proof beyond a reasonable doubt. See United States v. Burgin , 388 F.3d 177 (6th Cir. 2004), cert. denied , 73 U.S.L.W. 3556 (U.S. Mar. 21, 2005) (No. 04-8785); United States v. Morris , 293 F.3d 1010 (7th Cir. 2002); United States v. Santiago , 268 F.3d 151 (2d Cir. 2001). In Santiago , the Second Circuit noted that the “determination of ‘the fact of a pri or conviction’ implicitly entails-8-

many subsidiary findings.” Santiago , 268 F.3d at 156; see also United States v. Kempis-Bonola , 287 F.3d 699, 703 (8th Cir. 2002) (noting its agr eement with the Santiago court “that it is entirely appropriate for judges to have ‘the task of finding not only the mere fact of previous convicti ons but other related issues as well’”) (quoting Santiago , 268 F.3d at 156). We conclude that, among those “subsidiary findings” are such things as the durati on of a term of court supervision following a prior conviction, or the date the defendant was released from custody following a prior conviction. Like th e “fact” of a conviction itself, those ancillary “facts” are merely aspects of the d efendant’s recidivist potential, they are easily verified, and their application for purposes of enhancing a sentence under USSG §4A1.1 requires nothing more than offici al records, a calendar, and the most self-evident mathematical computation. Se e United States v. Mateo , 271 F.3d 11, 16 (1st Cir. 2001) (“[W]e hold that in det ermining whether to add criminal history points under USSG § 4A1.1(d), a se ntencing court ordinarily is not required to look beyond the face of the state-c ourt record.”). We therefore conclude that the district court did not err when i t added (whether using a preponderance of the evidence or a beyond a reasona ble doubt standard) three criminal history points pursuant to §4A1.1(d) and ( e). And, even assuming arguendo that the district court did err, we conclude that such an error was far from plain, since there was no definitive statement on-9-

whether the fact of a prior conviction included suc h administrative ancillary details as the date of any court supervision follow ing it or the length of sentence imposed.

II. Non-Constitutional Booker Error The district court sentenced Pineda-Rodriguez befor e Bookerand therefore erroneously viewed the Guidelines as mandatory. Pi neda-Rodriguez has filed a supplemental brief arguing that sentencing based up on mandatory Guidelines constitutes plain error under Booker , necessitating a remand for resentencing.
See Booker , 125 S. Ct. at 769 (“[W]e expect reviewing courts to apply ordinary prudential doctrines, determining, for example, whe ther the issue was raised below and whether it fails the ‘plain-error’ test.” ). Because Pineda-Rodriguez only challenges the use of facts relating to his prior convictions, which we held above did not viol ate his Sixth Amendment rights, Pineda-Rodriguez’s remaining argument prese nts a non-constitutional Bookererror. See United States v. Gonzalez-Huerta , No. 04-2045, 2005 WL 807008, at *2 (en banc) (distinguishing between “co nstitutional Bookererror” and “non-constitutional Bookererror”); United States v. Trujillo-Terrazas , No. 04-2075, 2005 WL 880896, at *2 (10th Cir. Apr. 13, 2005). To establish plain error, Pineda-Rodriguez must demonstrate there is “ (1) error, (2) that is plain,-10-

which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceed ings.” Gonzalez-Huerta , 2005 WL 807008, at *3. The district court’s error in se ntencing Pineda-Rodriguez under mandatory Guidelines is plain. Id. However, even though plain error occurred, the burd en is on PinedaRodriguez to show that the error affected his subst antial rights. United States v.
Vonn , 535 U.S. 55, 63 (2002); Gonzalez-Huerta , 2005 WL 807008, at *3. To establish that the mandatory application of the Gui delines affected his substantial rights, Pineda-Rodriguez must show a “reasonable pr obability” that the defects in his sentencing proceeding altered the result of that proceeding. Id. (quoting United States v. Dominguez Benitez , 542 U.S. 74, 124 S. Ct. 2333, 2339 (2004)). “[Pineda-Rodriguez] therefore bears the burden to c onvince this Court, based on the record on appeal, that the error affected his s ubstantial rights.” Id. Pineda-Rodriguez initially argues that the districtcourt’s error was structural and that demonstrates that his substanti al rights were affected. We have recently concluded that “non-constitutional Bo okererror does not constitute structural error.” Id. at *4. Aside from that argument, Pineda-Rodriguez points to nothing specific in the record which suggests th at there is a reasonable probability that the outcome of his sentencing proc eeding would have been different had the district court operated under a d iscretionary sentencing scheme,-11-

other than the fact that he was sentenced at the bo ttom of the Guideline range, with the district court’s observation that that was “the best he can do.” Tr. of Sentencing Hr’g at 7, R. Vol. III. We have recentl y held that, to show a nonconstitutional Bookererror violates a defendant’s substantial rights un der plainerror review, the defendant may show a “disconnect between the newly relevant § 3553(a) factors and the sentence given to [the de fendant]” which “leads us to believe that there is a reasonable probability that he would receive a lesser sentence under the new sentencing regime.” Trujill o , 2005 WL 880896, at *3. Or, failing that, the defendant may show that the “ district court expressed dissatisfaction with the mandatory character of the Guidelines” which “provides another reason to believe that the plain error . . . prejudiced [the defendant].” Id. at *4. Because, on the facts of this case, it is a very close question whether Pineda-Rodriguez has shown his substantial rights w ere affected, we assume he has made such a showing and turn to the fourth pron g of plain-error review. Cf. Gonzalez-Huerta , 2005 WL 807008, at *6 (“We need not determine whe ther [defendant] can satisfy this burden [of showing his substantial rights were affected] because even if he were to meet the third prong, he must also satisfy the fourth prong to obtain relief.”). Applying that fourth prong, we have stated that “we will not notice a nonconstitutional error, such as the one in the case b efore us, unless it is both-12-

‘particularly egregious’ and our failure to notice the error would result in a ‘miscarriage of justice.’” Id. at *7 (quoting United States v. Gilkey , 118 F.3d 702, 704 (10th Cir. 1997)); see also United States v. Olano , 507 U.S. 725, 734 (1993). Pineda-Rodriguez “bears the burden of meet ing this demanding standard.” Gonzalez-Huerta , 2005 WL 807008, at *7. He fails to do so. Pined aRodriguez offers only the conclusory statement that “refusing to remedy this error so that Mr. Pineda-Rodriguez’s sentence will conform with the new constitutional sentencing mandates of the Supreme C ourt would be fundamentally unfair.” Appellant’s Supp. Opening Br. at 12. That is insufficient to establish that the district court’s mandatory application of the Guidelines was “particularly egregious” or would result in a “miscarriage of jus tice.” Not only does PinedaRodriguez present a non-constitutional, rather than a constitutional, Bookererror, he also received a sentence that was indisputably “ within th[e] national norm” for offenders with similar criminal histories and offen ses, “and the record is devoid of any mitigating evidence.” Gonzalez-Huerta , 2005 WL 807008, at *8. Thus, the application of a mandatory sentencing scheme, s tanding alone, is insufficient to meet the fourth prong of plain error. Id. at **8-9.-13- CONCLUSION For the foregoing reasons, Pineda-Rodriguez’s sente nce is AFFIRMED.

ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge