* After examining the briefs and appellate record, th is panel has determined

unanimously to honor the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This orde r and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 

### March 3, 2006 Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 04-1325
v. (D. Colorado)ALFONSO ARMENTAARREDONDO, also known as Geronimo Alfonso Armenta,

Defendant - Appellant. (D.C. No. 04-CR-006-RB)

ORDER AND JUDGMENT *

Before TACHA, Chief Circuit Judge , HARTZ , and TYMKOVICH , Circuit Judges. Alfonso Armenta-Arredondo pleaded guilty to a one-c ount indictment charging a violation of 8 U.S.C. § 1326(a) and (b)( 2), illegal reentry after being previously deported following conviction for an agg ravated felony. The-2-

presentence investigation report (PSR) suggested a base offense level of eight, a three-level downward adjustment for acceptance of r esponsibility, and a 12-level increase under United States Sentencing Guidelines (USSG) § 2L1.2(b)(1)(B) for a prior felony drug-trafficking conviction. Mr. Armenta-Arredondo objected to application of the enhancement, arguing that he was a juvenile at the time of the conviction. In the alternative, he moved for a dow nward departure on the basis that his criminal history was overrepresented. The district court denied the objection and the departure motion, and sentenced h im to 27 months’ imprisonment, the bottom of the guidelines range. He now appeals his sentence, contending that (1) the district court misinterpret ed the guidelines in applying the 12-level enhancement, and (2) remand for resentenci ng is required under Booker v. United States , 543 U.S. 220 (2005). We affirm. I. INTERPRETATION OF GUIDELINE USSG § 2L1.2(b)(1)(B) states: “If the defendant pre viously was deported . . . after . . . a conviction for a felony drug t rafficking offense for which the sentence imposed was 13 months or less, increase by12 levels.” This provision, however, “does not apply to a conviction for an off ense committed before the defendant was eighteen years of age unless such con viction is classified as an adult conviction under the laws of the jurisdictionin which the defendant was convicted.” Id . cmt. n.1(A)(iv).-3-

On May 26, 1987, Mr. Armenta-Arredondo was sentence d in California for sale or transportation of marijuana. The PSR indic ated that Mr. ArmentaArredondo “reports that he was tried as an adult as he claimed to be 21 years old at the time of his arrest.” R. Vol. IV. at 5. At sentencing, his counsel stated that he “sustained a conviction when he said he was 21 y ears old, but he was really 15.” R. Vol. II at 5. Although the district judge was “cynical,” id . at 8, he inspected a birth certificate showing that Mr. Arme nta-Arredondo was 15 at the time of the conviction, found it to be self-authent icating under Fed. R. Evid. 902(4), and admitted it into evidence. The distric t judge then ruled that the record showed that Mr. Armenta-Arredondo was convic ted and sentenced as an adult in California, and that he could not collater ally attack that conviction in federal court. The plain language of the guideline s, the district judge said, required application of the 12-level enhancement. We agree. We recently held that “with the exception of a coll ateral attack based on the complete denial of counsel, a district court senten cing a defendant under 8 U.S.C. § 1326(b)(2) and USSG § 2L1.2(b)(1)(A) cannot consi der a collateral attack on a prior conviction.” United States v. Delacruz-Soto , 414 F.3d 1158, 1167 (10th Cir. 2005). Mr. Armenta-Arredondo does not dispute thathe was represented by counsel. Instead, he contends that he is not attac king the validity of his prior conviction, only its classification as an adult con viction. He asserts that at the-4-

time of his conviction there was no provision in Ca lifornia law whereby a 15-year-old child could be tried as an adult for a marijuana sale. That may be true, but regardless of how he characterizes his ar gument, he is attacking the validity of his prior conviction. If he was only 1 5, then, by his own argument, he could not have been tried as an adult and his convi ction would be invalid. That issue, however, has never been put before the court s of California. The birth certificate presented to the district court does no thing more than show that he might have a valid basis on which to attack his pri or conviction, but he must do so in a California court. The district court did n ot err in applying the 12-level enhancement. II. BOOKER v. UNITED STATES Mr. Armenta-Arredondo’s opening brief argued that h is sentence was unconstitutional under Blakely v. Washington , 542 U.S. 296 (2004). The Supreme Court then decided Booker v. United States , 543 U.S. 220 (2005), which was addressed by the government in a supplemental briefand by Mr. ArmentaArredondo in his reply brief. Neither Blakelynor Bookerwas raised below. Our review is therefore for plain error. This case involves what this court has identified a s nonconstitutional Bookererror. See United States v. Gonzalez-Huerta , 403 F.3d 727, 731-32 (10th Cir. 2005). That is, the district court’s only err or was in “applying the Guidelines-5-

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 fac t of a prior conviction.” Id. at 731-32. The district court was called upon to dete rmine whether Mr. ArmentaArredondo’s prior conviction was classified as an a dult conviction by California, but this was a question for the court, not the jury

. See United States v. Moore , 401 F.3d 1220, 1225 (10th Cir. 2005) (whether priorconviction was a violent felony is question for court). The court made no o ther findings that enhanced the sentence. “Plain error occurs when there is (1) error, (2) th at is plain, which (3) affects substantial rights, and which (4) seriouslyaffects the fairness, integrity, or public reputation of judicial proceedings.” Gonzalez-Huerta , 403 F.3d at 732 (internal quotation marks omitted). Nonconstitutio nal error calls for a more rigid application of the plain-error test. United States v. Dazey , 403 F.3d. 1147, 1174 (10th Cir. 2005) (“We conduct this analysis less ri gidly when reviewing a potential constitutional error.” (internal quotatio n marks omitted)). The first two prongs of the plain-error test are satisfied when the sentencing judge applied the guidelines in a mandat ory fashion. GonzalezHuerta , 403 F.3d at 732. The defendant’s burden on the t hird prong is to show that the error affected the outcome of the proceedi ng. Id . In cases of-6-

nonconstitutional error this can be done only by “d emonstrating a reasonable probability that, under the specific facts of his c ase as analyzed under the sentencing factors of 18 U.S.C. § 3553(a), the district court judge would reasonably impose a sentence outside the Guidelines range.” Dazey , 403 F.3d at 1175; see also United States v. Clifton , 406 F.3d 1173, 1181 (10th Cir. 2005) (“[A] defendant can show a non-constitutional Bookererror affected substantial rights with evidence of (1) a disconnect between th e § 3553(a) factors and his sentence, and (2) the district court’s expressed di ssatisfaction with the mandatory Guidelines sentence in his case.”). Whether the district judge would impose a sentence below the guidelines range is also a key consideration under the fourth prong of the plain-error test. United States v. Lawrence , 405 F.3d 888, 907 (10th Cir. 2005) (“Whether the district court would simply reimpose the same sente nce on remand, or whether instead the sentence would likely change to a signi ficant degree if the case were returned to the district court for discretionary re sentencing, is one factor to consider in determining whether the defendant can s atisfy the fourth plain-error prong.” (internal quotation marks and brackets omitted)). The fourth prong of the plain-error test places an exceptionally high burde n on the defendant. Dazey , 403 F.3d at 1178 (defendant must make an “exceptional s howing” before nonconstitutional-error case will be remanded). “I n an instance of non--7-

constitutional error the standard for satisfying th e fourth prong of the plain error test is demanding. A party that fails to raise an argument in the district court must show that allowing a non-constitutional error to stand would be particularly egregious and would constitute a miscarriage of jus tice.” Id. (internal quotation marks and citation omitted). Because the fourth pr ong imposes such a high burden, our Bookerplain-error cases are often resolved on this prong rather than the third. Gonzalez-Huerta , 403 F.3d at 736 (“We need not determine whether Mr. Gonzalez-Huerta can satisfy this burden because even if he were to meet the third prong, he must also satisfy the fourth prong to obtain relief.”). Mr. Armenta-Arredondo has not satisfied the fourth prong. Nothing in the record indicates that the district judge would impo se a lower sentence on remand. He stated that “in preparing a fair and just senten ce” he had considered all necessary factors, including those set forth in 18 U.S.C. § 3551. R. Vol. II at 15. The judge rejected Mr. Armenta-Arredondo’s motion f or a downward departure on the basis that his criminal history was overrepr esented because he had been considered an adult in California, no other argumen t has been presented why a lower sentence would be justified, and the judge expressed no misgivings about the sentence. In this circumstance, “remand would be an exercise in futility.” United States v. Magallanez , 408 F.3d 672, 686 (10th Cir. 2005). Mr. Armenta-Arredondo has failed to show that the m andatory application of the-8-

guidelines “affect[ed] the fairness, integrity, or public reputation” of his sentencing. Gonzalez-Huerta , 403 F.3d at 732 (internal quotation marks omitted ).

III. CONCLUSION We affirm the judgment of the district court.

Entered for the Court

Harris L Hartz Circuit Judge