*The case is unanimously ordered submitted without oral argument

pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order

and judgment is not binding precedent, except under the doctrines of law of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

October 25, 2005

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

SERGIO NUNEZ-ONTIVEROS,

 Defendant-Appellant.

No. 04-3398

(District of Kansas)

D.C. No. 04-10122-01 JTM

ORDER AND JUDGMENT*

Before TACHA, Chief Judge, MURPHY and TYMKOVICH, Circuit

Judges.

The defendant pled guilty to illegal reentry by an alien deported

subsequent to a conviction for an aggravated felony. On appeal, he

challenges a 16-level enhancement based on a prior conviction imposed by
2

the district court. He argues that under United States v. Booker, 125 S.Ct.

738 (2005), the district court erred in believing that the Sentencing

Guidelines are mandatory, and that under Booker and Blakely v.

Washington, 542 U.S. 296 (2004), a prior conviction may not be used to

support a sentence enhancement unless it is admitted by the defendant or

proven beyond a reasonable doubt. We vacate the defendant’s sentence and

remand.

The first issue we address is the government’s motion to enforce the

appellate waiver in the plea agreement. The plea agreement contained the

following waiver of appellate rights:

7. Waiver of Appeal and Collateral Attack. With

the exception noted below, defendant knowingly and

voluntarily waives any right to appeal or collaterally

attack any matter in connection with this

prosecution, conviction and sentence. The

defendant is aware that Title 18, U.S.C. § 3742

affords a defendant the right to appeal the

conviction and sentence imposed. By entering into

this agreement, the defendant knowingly waives any

right to appeal the conviction herein or a sentence

imposed that is within the guideline range

determined appropriate by the court. The defendant

also waives any right to modify, change or challenge

a sentence or manner in which it was determined in

any collateral attack, including, but not limited to, a

motion brought under Title 28, U.S.C. § 2255

[except as limited by United States v. Cockerham,

237 F.3d 1179, 1187 (10th Cir. 2001)] and a motion

brought under Title 18, U.S.C. § 3582(c)(2). In

other words, the defendant waives the right to
3

appeal the conviction and sentence imposed in this

case except to the extent, if any, the court departs

upwards from the applicable sentencing guideline

range determined by the court. However, if the

United States exercises its right to appeal the

sentence imposed as authorized by Title 18, U.S.C.

§ 3742(b), the defendant is released from this

waiver and may appeal the sentence received as

authorized by Title 18, U.S.C. § 3742(a).

The exception to this waiver of appellate rights is

that if the sentencing court determines that the

defendant is subject to the 16-level enhancement of

U.S.S.G. § 2L1.2(b)(1)(A), the defendant reserves

the right to a direct appeal of that determination. To

the extent such an appeal requires the defendant to

argue that the Blakely v. Washington case discussed

below in Paragraph 8 precludes the 16-level

enhancement, the parties agree that he hereby

reserves his right to do so.

8. Waiver of Blakely rights. The defendant agrees

to waive any rights that may have been conferred

under Blakely v. Washington, 2004 WL 1402697

(June 24, 2004), and agrees to have the sentence in

his case determined under the U.S. Sentencing

Guidelines (Guidelines). The defendant further

waives any right to have facts that determine the

offense level under the Guidelines alleged in an

indictment and found by a jury beyond a reasonable

doubt; agrees the facts that determine the offense

level will be found by the Court at sentencing by a

preponderance of the evidence and agrees that the

Court may consider any reliable evidence, including

hearsay; and the defendant agrees to waive all

constitutional challenges to the validity of the

Guidelines. 

(Emphasis added.)
4

The presentence report included a 16-level enhancement under §

2L1.2(b)(1)(A)(vii) because the defendant had previously been convicted

of transporting illegal aliens. The defendant objected to the enhancement,

arguing that the prior conviction had not been charged in the indictment or

proven to a jury beyond a reasonable doubt, as required by Blakely. He did

admit that he was subject to a 12-level enhancement for a sentence of

probation he had received following a prior conviction for the sale of

cocaine.

The court rejected the defendant’s argument because the objection

dealt with a prior conviction and therefore was not within the scope of

Blakely. The resulting sentencing range was 46 to 57 months. The court

sentenced the defendant to 46 months.

The government contends that the appellate waiver meets the

requirements of United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir.

2004) (“the court of appeals, in reviewing appeals brought after a defendant

has entered into an appeal waiver, determine[s]: (1) whether the disputed

appeal falls within the scope of the waiver of appellate rights; (2) whether

the defendant knowingly and voluntarily waived his appellate rights; and

(3) whether enforcing the waiver would result in a miscarriage of justice as

we define herein.”), and that both issues are precluded by the appellate
5

waiver.

However, after reviewing the plea agreement, we conclude that the

waiver is not enforceable at all because the waiver provisions are unclear. 

These ambiguities are to be read in the defendant’s favor. See Hahn, 359

F.3d at 1325 (“In determining a waiver’s scope, we will strictly construe

appeal waivers and any ambiguities in these agreements will be read against

the Government and in favor of a defendant’s appellate rights.”) (internal

quotation omitted). Accordingly, we conclude that the defendant is not

bound by the appellate waiver.

The district court committed non-constitutional Booker error by

sentencing the defendant through mandatory application of the guidelines. 

See United States v. Gonzalez-Huerta, 403 F.3d 727, 731-32 (10th Cir.

2005), cert. denied, ___ S.Ct. ___, No. 05-6407, 2005 WL 229216 (Oct. 17,

2005). Because the defendant raised Blakely in the district court, we

review for harmless error. See United States v. Labastida-Segura, 396 F.3d

1140, 1142-43 (10th Cir. 2005) (noting that a Blakely objection is

sufficient to preserve a non-constitutional Booker error).

Fed. R. Crim. P. 52(a) provides that “[a]ny error, defect, irregularity,

or variance that does not affect substantial rights must be disregarded.” 

The error is harmless if it “did not affect the district court’s selection of the
6

sentence imposed.” Labastida-Segura, 396 F.3d at 1143 (citation and

quotation omitted). The government has the burden of demonstrating that

the defendant’s substantial rights were not affected, which does not require

proof that the invalid factor was determinative in arriving at the sentence. 

Williams v. United States, 503 U.S. 193, 203 (1992). 

The facts here are similar to those in Labastida-Segura. In that case,

the defendant was convicted of the same offense as the defendant, unlawful

entry of a previously deported alien. Like the defendant here, the defendant

challenged the constitutionality of the Guidelines at sentencing and was

overruled by the district judge, who found the Guidelines constitutional. In

addition, the district court, as here, imposed the lowest possible sentence

under what it considered to be mandatory Guidelines. We held that the

district court’s error was not harmless and warranted a remand for

resentencing.

Here, where [the sentence imposed] was already at

the bottom of the guidelines range, to say that the

district court would have imposed the same sentence

given the new legal landscape (even after consulting

the Sentencing Guidelines in an advisory capacity)

places us in the zone of speculation and

conjecture--we simply do not know what the district

court would have done after hearing from the

parties. Though an appellate court may judge

whether a district court exercised its discretion (and

whether it abused that discretion), it cannot exercise
7

the district court’s discretion. 

396 F.3d at 1143.

We are left with the same situation as in Labastida-Segura. 

Accordingly, as in Labastida-Segura, we hold that the error was not

harmless, and remand for re-sentencing.

The defendant also argues that, under Booker, the nature of his prior

conviction used to enhance his sentence must be either admitted or proven

beyond a reasonable doubt. This contention is foreclosed by AlmendarezTorres v. United States, 523 U.S. 224 (1998), and United States v. Moore,

401 F.3d 1220 (10th Cir. 2005) (“[W]e are bound by existing precedent to

hold that the Almendarez-Torres exception to the rule announced in

Apprendi and extended to the Guidelines in Booker remains good law.”).

For the foregoing reasons, we VACATE the defendant’s sentence and

REMAND the case to the district court for resentencing in accordance with

Booker.

Entered for the Court

PER CURIAM