UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ROGELIO TRUJILLO-TERRAZAS,

Defendant - Appellant.

No. 04-2075

ORDER

April 18, 2005

Before, SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.

The opinion filed April 13, 2005, was filed in error. A revised opinion is attached

and is filed nunc pro tunc. Please replace the attached version of the opinion with the one

previously filed.

Entered for the Court

PATRICK FISHER, Clerk of Court

by:

Deputy Clerk
*

 After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

F I L E D

United States Court of Appeals

Tenth Circuit

APR 13 2005

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 04-2075

ROGELIO TRUJILLO-TERRAZAS,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. NO. CR. 03-1997 RB)

Submitted on the briefs.*

Carlos Ibarra-Aguirre, Assistant Federal Public Defender, Las Cruces, New Mexico, for

Defendant-Appellant.

David C. Iglesias, United States Attorney, and Norman Cairns, Assistant United States

Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee.

Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.
2

Mr. Trujillo appeals his sentence of 41 months imprisonment for illegally

reentering the United States after deportation in violation of 8 U.S.C. §

1326(a). Mr. Trujillo argues that his sentence is unconstitutional in light of Blakely v.

Washington, 124 S.Ct. 2531 (2004). We evaluate this claim now that the Supreme Court

has issued its decision in United States v. Booker, 125 S.Ct. 738 (2005). We conclude

that the district court committed plain error in sentencing Mr. Trujillo, and we VACATE

his sentence and REMAND to the district court for resentencing in accordance with

Booker.

I.

On October 8, 2003, a federal grand jury returned an indictment against Mr.

Trujillo, charging him with illegal reentry after deportation. He pled guilty to the

indictment without the benefit of a plea agreement on December 2, 2003. Applying the

Sentencing Guidelines, the probation officer assigned a base offense level of 8, see

U.S.S.G. § 2L1.2(a), and applied a 16-level enhancement because Mr. Trujillo had a prior

Oklahoma conviction for arson, a crime of violence. See U.S.S.G. § 2L1.2(a)(1)(A)(ii). 

Mr. Trujillo received a three-level reduction for acceptance of responsibility, U.S.S.G. §

3E1.1, resulting in a total offense level of 21. The district court followed the

government’s suggestion of sentencing Mr. Trujillo to 41 months of incarceration, the

low end of the sentencing range.

At sentencing, the district court judge expressed reservations about imposing the
3

sentence required by the then-mandatory Guidelines. A potential source of this hesitation

was the comparatively innocuous nature of Mr. Trujillo’s prior conviction in Oklahoma

for third degree arson. Mr. Trujillo was upset that an ex-girlfriend had begun seeing

someone new, and he acted on his frustration by throwing a lighted match into a 1980

Oldsmobile belonging to his ex-girlfriend’s new love interest. The Oklahoma state court

determined that the appropriate compensation for the fire damage was the paltry sum of

$35.00. After hearing Mr. Trujillo’s plea for leniency, the district court judge explained

that while he was sympathetic to the defendant’s argument, he was bound by the

Guidelines. The judge stated:

Mr. Trujillo, you suggested that this is a lot of time that I want to give

you. You know what? I don’t want to send anybody to jail, and I wish

that I didn’t have to. And the fact is, as [your attorney] has explained to

you, I’m sure, these Sentencing Guidelines are something that we’re all

struggling with, but they say what the minimum is that you have to do. 

And I’m sorry, you know, under the circumstances, that I have to do what

I have to do.

Sentencing Transcript, R. Vol. 3 at 5-6. Mr. Trujillo argues that the district court’s

expressed reluctance to impose the sentence required by the Guidelines demonstrates the

plain error in his sentencing.

II.

Mr. Trujillo did not raise the constitutional challenge during sentencing. 

Consequently, we review the decision of the district court for plain error. United States

v. Gonzalez-Huerta, ___ F.3d ___, 2005 WL 807008 *3 (10th Cir. 2005) (en banc); cf.
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Booker, 125 S.Ct. at 769 (“[W]e expect reviewing courts to apply ordinary prudential

doctrines, determining, for example, whether the issue was raised below and whether it

fails the ‘plain-error’ test.”). To establish plain error, Mr. Trujillo must demonstrate (1)

that the district court committed error, (2) that the error was plain, and (3) that the plain

error affected his substantial rights. United States v. Cotton, 535 U.S. 625, 631 (2002);

Gonzalez-Huerta, 2005 WL 807008 *3. If the error meets all these conditions, the

reviewing court may exercise discretion to correct the error if it would seriously affect

the fairness, integrity, or public reputation of judicial proceedings to let the error stand. 

Cotton, 535 U.S. at 631-32. The analysis is relaxed when applied to potential

constitutional error. United States v. James, 257 F.3d 1173, 1182 (10th Cir. 2001).

1. Error

The district court erred in sentencing Mr. Trujillo. In Booker, the Court extended

the logic of Blakely to the Federal Sentencing Guidelines, holding that “[a]ny fact (other

than a prior conviction) 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 doubt.” Booker, 125

S.Ct. at 756. To remedy the constitutional infirmity created by applying judge-found

facts to mandatory sentencing guidelines, the Court severed the provision of the federal

sentencing statute making application of the Guidelines mandatory. Id. at 756-57

(excising 18 U.S.C. § 3553(b)(1)). The effect of the remedy in Booker was to render the
5

Guidelines advisory. Id. This rule applies to all cases on direct review, id. at 769; thus it

was erroneous for the district court to treat the Guidelines as mandatory in sentencing

Mr. Trujillo.

We stress, however, that the error in this case was not constitutional in nature. 

Nothing in Booker—or in the logic of the Sixth Amendment or the Due Process

Clause—suggests that it is unconstitutional for Congress to establish a sentencing

scheme that does not entail judicial discretion. The Booker majority’s holding that the

Guidelines are not mandatory was remedial in nature. See id. at 756-57 (Breyer, J.). The

Court severed the provisions of the statute making the Guidelines mandatory, not

because mandatory sentencing ranges are unconstitutional, but because allowing judges

to decide contested questions of fact, pursuant to a preponderance of the evidence

standard, is unconstitutional when such factfinding leads ineluctably to a higher sentence

than would be warranted by the facts found by the jury or admitted by the defendant. By

rendering the Guidelines discretionary, the Court saved the process of judicial

factfinding from unconstitutionality under the Sixth Amendment. In this case, the

sentencing court did not increase Mr. Trujillo’s sentence by resolving contested

questions of fact; the enhancements to the sentence were purely a product of prior

convictions. The error here was therefore not constitutional in nature. See GonzalezHuerta, 2005 WL 807008 *2-3. 
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2. Plain

There is no doubt that the error here is plain. To be plain, an error must be “clear

or obvious” under “well-settled law.” United States v. Whitney, 229 F.3d 1296, 1309

(10th Cir. 2000). An error is plain “where the law at the time of trial was settled and

clearly contrary to the law at the time of appeal.” Johnson v. United States, 520 U.S.

461, 468 (1997). That is the situation here. Because the district court treated the

Guidelines as mandatory, Mr. Trujillo’s sentence is contrary to Booker. GonzalezHuerta, 2005 WL 807008 *3. This observation does not, of course, reflect negatively on

the district court, which was simply applying the law in effect at the time. 

3. Affects Substantial Rights

The third prong of plain error analysis inquires whether the error in sentencing

Mr. Trujillo affected his substantial rights. For an error to have affected substantial

rights, “the error must have been prejudicial: It must have affected the outcome of the

district court proceedings.” United States v. Olano, 507 U.S. at 725, 734 (1993). The

burden to establish prejudice to substantial rights is on the party that failed to raise the

issue below. See United States v. Vonn, 535 U.S. 55, 63 (2002); Gonzalez-Huerta, 2005

WL 807008 *3. To demonstrate that the mandatory application of the Guidelines

affected substantial rights, a defendant must show a “reasonable probability” that the

defects in his sentencing altered the result of the proceedings. Cf. U.S. v. Dominguez

Benitez, 124 S.Ct. 2333, 2339 (2004) (“In cases where the burden of demonstrating
7

prejudice . . . is on the defendant seeking relief, we have invoked a standard . . .

requiring the showing of ‘a reasonable probability that, but for [the error claimed], the

result of the proceeding would have been different.’”) (quoting United States v. Bagley,

473 U.S. 667, 682 (1985) (opinion of Blackmun, J.)). Mr. Trujillo can make this

showing by demonstrating a reasonable probability that had the district court applied the

post-Booker sentencing framework, he would have received a lesser sentence. 

Prior to Booker, district courts were closely tethered to the Guidelines when

sentencing. Section 3553(b)(1) permitted sentences outside the range determined by the

Guidelines only in a narrow set of circumstances defined by the Sentencing Commission. 

After Booker, district courts have a freer hand in determining sentences. While the

Guidelines still exert gravitational pull on all sentencing decisions—district courts must

“consult” the Guidelines, and sentences that unreasonably depart from the suggested

sentencing range are at risk of reversal on appeal, Booker, 125 S.Ct. at 767—district

courts now have more discretion to tailor sentences to the individual circumstances of a

defendant. Booker suggests that the sentencing factors articulated in § 3553(a), which

the mandatory application of the Guidelines made dormant, have a new vitality in

channeling the exercise of sentencing discretion. See id. at 765–66; United States v.

Rodriguez, 398 F.3d 1291, 1301 (11th Cir. 2005); see also United States v. Rodgers, 400

F.3d 640, 641-42 (8th Cir. 2005) (applying § 3553(a) to find a sentence unreasonable). 

Applying the sentencing factors listed in § 3553(a) to Mr. Trujillo’s case provides a
8

strong indication that had the district court applied the Booker framework, his sentence

would have been lower and this lower sentence would be reasonable.

In addition to considering the sentencing range suggested by the Guidelines, see

18 U.S.C. § 3553(a)(4), § 3553(a) requires district courts to consider the “history and

characteristics of the defendant,” id. § 3553(a)(1), and “the need to avoid unwarranted

sentence disparities among defendants with similar records who have been found guilty

of similar conduct,” id. § 3553(a)(6). The relatively trivial nature of Mr. Trujillo’s

criminal history is at odds with the substantial 16-level enhancement recommended by

the Guidelines for this conduct. The state court assessed restitution of a mere $35.00 for

Mr. Trujillo’s third degree arson conviction, suggesting a quite minor offense. The

Guidelines, however, look only to the conviction itself rather than the actual conduct

underlying the conviction. This blunter approach means that the Guidelines do not

distinguish between tossing a lighted match through a car window, doing minor damage,

and a more substantial crime of violence such as an arson resulting in the complete

destruction of a building or vehicle. To punish this prior conduct in the same manner

could be seen to run afoul of § 3553(a)(6), which strives to achieve uniform sentences

for defendants with similar patterns of conduct. Cf. Booker, 125 S.Ct. at 757 (explaining

that the Booker remedy endeavors to maintain “a strong connection between the sentence

imposed and the offender’s real conduct”). The disconnect between the newly relevant §

3553(a) factors and the sentence given to Mr. Trujillo leads us to believe that there is a
9

reasonable probability that he would receive a lesser sentence under the new sentencing

regime.

While the § 3553(a) analysis suggests that a departure from the Guideline range

would be permissible post-Booker, the district court’s expression of sympathy for Mr.

Trujillo also implies the district court is inclined to depart. The district court expressed

dissatisfaction with the mandatory character of the Guidelines, stating that “these

Sentencing Guidelines are something that we’re all struggling with, but they say what the

minimum is that you have to do. And I’m sorry, you know, under the circumstances, that

I have to do what I have to do.” Sent. Tr., R. Vol. 3, at 6. The judge’s voiced regret

provides another reason to believe that the plain error here prejudiced Mr. Trujillo. 

Accordingly, we conclude that he has carried his burden of demonstrating that the plain

sentencing error affected his substantial rights.

4. Integrity, Fairness, or Public Reputation

If a plain error affects the integrity, fairness, or public reputation of judicial

proceedings, it is in the discretion of the reviewing court to correct the error. Johnson,

520 U.S. at 467. Our analysis under this fourth prong when an error is non-constitutional

is not flippant or perfunctory; the standard is formidable, as we will only exercise our

discretion when an error is “particularly egregious” and the failure to remand for

correction would produce a “miscarriage of justice.” Gonzalez-Huerta, 2005 WL
1 The Supreme Court has noted that the term “miscarriage of justice” does not

mean the same thing in the plain error context as it does in the collateral review context. 

In Olano, the Court explained that in habeas cases a “miscarriage of justice” is

synonymous with the defendant’s actual innocence. 507 U.S. at 736. However, a

defendant can satisfy his burden of meeting the fourth prong of plain error analysis short

of demonstrating that he is actually innocent of the alleged crime. Id.

10

807008 *7 (quoting United States v. Gilkey, 118 F.3d 702, 704 (10th Cir. 1997)).1 A

plain error affecting substantial rights cannot, “without more,” satisfy the fourth prong. 

Olano, 507 U.S. at 737; Gonzalez-Huerta, 2005 WL 807008 *6.

In a run of the mill case with non-constitutional Booker error, for example where

a defendant pleads guilty and there is nothing remarkable about his criminal history, the

defendant will often not be able to satisfy this requirement. In such a case, the

defendant’s constitutional rights were not violated, and there is no reason to suppose that

the Guidelines sentence is anything but fair and reasonable. Indeed, a non-constitutional

Booker error is “error” at all only as the serendipitous consequence of the severability

analysis the Supreme Court employed to correct the constitutional infirmity created by

the combination of judicial factfinding and mandatory application of the Guidelines. 

Even if a defendant can demonstrate that the district court felt particular sympathy for

him, and might impose a lesser sentence on remand, failing to correct this type of plain

error would not impugn the fairness, integrity, and public reputation of judicial

proceedings. Indeed, a remand might do quite the opposite because another defendant

convicted of an identical crime under identical circumstances could receive a different
11

sentence from a less sympathetic judge. Cf. Cotton, 535 U.S. 625, 634 (arguing that

correcting a plain error when confronted with overwhelming evidence of guilt would

harm rather than further the fairness and integrity of the judicial system).

In contrast to many cases involving non-constitutional Booker error, correcting

the plain error in Mr. Trujillo’s sentence would not denigrate the fairness and integrity of

the judicial system by magnifying the whim and caprice inherent in less restricted

sentencing determinations. On the contrary, Mr. Trujillo presents a compelling case that

objective consideration of the § 3553(a) factors warrants a departure, and perhaps a

significant departure, from the sentence suggested by the Guidelines. To allow the

mismatch between the sentence suggested by a principled application of the post-Booker

sentencing framework and the actual sentence given to Mr. Trujillo would call into

question the fairness, integrity, and public reputation of judicial proceedings. We thus

believe that it is a sound exercise of our discretion to remand this case for resentencing

despite Mr. Trujillo’s failure to assert error below.

III.

For the reasons set forth above, the judgment of the United States District Court

for the District of New Mexico is VACATED and REMANDED.