* This order and judgment is not binding precedent, e xcept under the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

### March 27, 2006 Elisabeth A. Shumaker Clerk of Court 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ALFREDO ROMAN-ROMAN, Defendant-Appellant. No. 03-3276 (D.C. No. 02-CR-40127-01-SAC)

(D. Kan.)



### ORDER AND JUDGMENT *

Before MURPHY , SEYMOUR , and PORFILIO, Circuit Judges.

Alfredo Roman-Roman pled guilty to conspiracy drug charges in violation of 21 U.S.C. § 846, 841(b)(1)(A) and 18 U.S.C. § 2. On direct appeal, we affirmed the district court’s denial of Mr. Roman-R oman’s motion to suppress evidence obtained from a search of his rented vehic le after a traffic stop. United States v. Roman-Roman , 116 Fed. Appx. 994 (10th Cir. Dec. 6, 2004). The-2-

Supreme Court summarily vacated the judgment in Mr. Roman-Roman’s case and remanded for further consideration of his sentence in light of United States v. Booker , 543 U.S. 220 (2005). See Roman-Roman v. United States , 126 S. Ct. 410 (2005). Having reviewed the parties’ supplemental briefs, we reinstate our prior order and judgment and affirm Mr. Roman-Roman’s sentence. Mr. Roman-Roman pled guilty to “conspiracy to posse ss with intent to distribute in excess of 30 kilograms of a substance or mixture of substances containing a detectable amount of methamphetamine.” Aplt. App. at 164. He did, however, preserve his right to appeal the supp ression issues in his case. The plea agreement contained a narrative agreed to by b oth parties detailing the facts surrounding Mr. Roman-Roman’s arrest and eventual g uilty plea. Id. at 165. The narrative stated that Mr. Roman-Roman was stopped b y the police while riding as a passenger in a rented van, after which, he and th e driver consented to a search of the vehicle. The search resulted in the discove ry of sixty-nine pounds of methamphetamine. Id. at 166. After Mr. Roman-Roman entered his plea, a pre-sente nce report (PSR) was prepared by the United States Probation Office. Th at report fully detailed the facts surrounding Mr. Roman-Roman’s offense, includ ing that he was found in possession of 30.7 kilograms of methamphetamine. R ec., vol. II at 6-8. The PSR recommended a base offense level of 38. The reportalso recommended that three-3-

levels be subtracted for acceptance of responsibili ty under U.S.S.G. § 3E1.1, and an additional two levels for application of the saf ety valve provision under U.S.S.G. § 5C1.2. Rec., vol. II at 9-10. These ca lculations resulted in a total offense level of 33, which coupled with Mr. Roman-R oman’s criminal history category of I, yielded a sentencing range of 135-16 8 months. Id. at 15. Mr. Roman-Roman did not object to the PSR. Nor did he object when the district court sentenced him to 135 months. He did not appe al his sentence, challenging only the district court’s denial of his motion to s uppress the evidence found in his vehicle. In Booker , the Supreme Court ruled that “[a]ny fact (other t han a prior conviction) which is necessary to support a sentenc e exceeding the maximum authorized by the facts established by a plea of gu ilty or a jury verdict must be admitted by the defendant or proved to a jury beyon d a reasonable doubt.” Booker , 543 U.S. at 244. The ruling in Bookerapplies to all cases on direct review. Id. at 268. Where, as here, no Bookererrors were raised below, we review for plain error. See United States v. Gonzalez-Huerta , 403 F.3d 727, 732 (10th Cir. 2005). “Plain error occurs when there i s (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceed ings.” Id. (quoting United States v. Burbage , 365 F.3d 1174, 1180 (10th Cir. 2004)). Mr. Roman -Roman is-4-

unable to satisfy this standard. Our court has identified two different types of sentencing errors under Booker . Constitutional Bookererror arises where the court bases a sentence on judge-found facts. Non-constitutional Bookererror occurs where the court applies the guidelines in a mandatory fashion. See id. at 731-32. Constitutional Bookererror did not occur in this case because the distr ict court, in sentencing Mr. Roman-Roman, did not rely on judge-found facts to increase his sentence. Instead, his sentence was based entirely on his adm ission that he possessed more than thirty kilograms of a substance containing methamphetamine. His guilty plea detailed this fact, and he raised no objections to the PSR reciting the same. This case does present non-constitutional Bookererror because the district court applied the guidelines in a mandatory fashionwhen it sentenced Mr. Roman-Roman. Where non-constitutional Bookererror is involved, the first two prongs of the plain error analysis are met. See United States v. Clifton , 406 F.3d 1173, 1181 (10th Cir. 2005). Even if Mr. Roman-Rom an could satisfy the third prong of the plain error test, however, we are not convinced he satisfies the final prong. See Gonzalez-Huerta , 403 F.3d at 736 (court need not decide third pron g of plain error test where defendant cannot satisfy final portion of test). Under the fourth prong of plain error review, we will exercis e our discretion to notice an error only if “it seriously affects the fairness, i ntegrity, or public reputation of-5-

judicial proceedings.” Id. The error must be both particularly egregious and result in a miscarriage of justice if we decline to notice it. Id. Mr. Roman-Roman does not make any substantial argum ent as to why the district court’s error in his case satisfies this h igh standard. At most, he asserts the conclusory allegation that because he received a reduction under the safety valve provision, mitigating factors existed in his case which could have resulted in a lower sentence, therefore casting the reputati on of the district court proceedings in doubt. He fails, however, to point to anything in the record to indicate what specific factors would result in the district court imposing a lower sentence on remand. In short, this is a “run of the mill case with non- constitutional Booker error.” United States v. Trujillo-Terrazas , 405 F.3d 814, 820 (10th Cir. 2005). Mr. Roman-Roman pled guilty, he received a sentence at the low end of the guideline range which was calculated without any Si xth Amendment violation, and “there is no reason to suppose,” id. , nor has Mr. Roman-Roman presented sufficient argument to cause us to doubt, that his “sentence is anything but fair and reasonable.” Id. Mr. Roman-Roman has thus failed to show how the instant error “seriously affects the fairness, integrity, o r public reputation of judicial proceedings.” Gonzales-Huerta , 403 F.3d at 736. Accordingly, he cannot satisfy the plain error test, and we must affirm his senten ce.-6--7-

We REINSTATE our prior order and judgment affirming Mr. RomanRoman’s conviction and, after consideration in light of Booker , we AFFIRM his sentence.

ENTERED FOR THE COURT Stephanie K. Seymour Circuit Judge