FILED 

United States Court of Appeals 

Tenth Circuit 

UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

May 27, 2005 

PA TRICK FISHER 

Clerk 

UNITED STA TES OF AMERICA, 

Plaintiff-Appellee, 

V. 

MECIEJ FELIKS GLUCHOWSKI, 

also known as Matthew Gluchowski, 

Defendant-Appellant. 

No. 04-2253 

(District of New Mexico) 

(D.C. No. CR-04-530-RB) 

ORDER AND JUDGMENT* 

Before BRISCOE, LUCERO, and MURPHY, Circuit Judges. 

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

determined unanimously to grant the parties' request for a decision on the briefs 

without oral argument. Fed. R. App. P. 34(f); 10th Cir. R. 34.1 (G ). This case is, 

therefore, ordered submitted without oral argument. 

*This order and judgment is not binding precedent, except under the 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. 

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I. INTRODUCTION 

Defendant-appellant Meciej Feliks Gluchowski pleaded guilty to illegal 

reentry after removal following a conviction for an aggravated felony, in violation 

of 8 U.S.C. § 1326(a)(l), (2), and (b)(2). The district court sentenced 

Gluchowski to seventy months' imprisonment. On appeal Gluchowski is 

challenging his sentence. Exercising jurisdiction pursuant to 18 U.S.C. § 3742(a) 

and 28 U.S.C. § 1291, we remand for resentencing. 

II. BACKGROUND 

On December 22, 2003, the vehicle in which Gluchowski was riding was 

stopped by a Catron County, New Mexico deputy sheriff. United States Border 

Patrol agents took custody of Gluchowski and his fellow occupants. Upon 

questioning, Gluchowski admitted that he was an undocumented alien from 

Poland and that he had previously been deported from the United States as an 

aggravated felon. 

A frderal grand jury returned an indictment against Gluchowski charging 

him with being found in the United States after having been removed following 

con\'i<:tion for an aggravated felony, in violation of 8 U.S.C. § 1326(a)(l), (2), 

and (b )( 2 ). On April 28, 2004, Gluchowski entered a guilty plea without a plea 

agreement. 

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The presentence report ("PSR'') established a sentencing range under the 

United States Sentencing Guidelines ("U.S.S.G") of seventy to eighty-seven 

months. This was based on an adjusted offense level of twenty-one 1 and a 

criminal history category of V. Gluchowski objected to the PSR, arguing that the 

sixteen-level enhancement based on an alleged prior conviction violated his Sixth 

Amendment rights under Blakely v. Washington, 124 S. Ct. 2531 (2004). 

Gluchowski also moved for a downward departure, asserting that the proposed 

criminal history category significantly overrepresented the seriousness of his 

criminal history. The district court denied Gluchowski's motion for a downward 

departure and rejected his Blakely argument. The court adopted the factual 

findings contained in the PSR and sentenced Gluchowski to a prison term of 

seventy months, at the bottom of the Guidelines range. 

III. DISCUSSION 

On appeal Gluchowski reasserts the argument he made before the district 

court, contending that because the sixteen-level sentencing enhancement was 

'The adjusted offense level was calculated as follows: the base offense 

level (for illegal reentry) of eight was enhanced sixteen levels pursuant to 

U.S.S.G. § 2Ll.2(b)(l)(A) because Gluchowski had been deported after a 

conviction for a felony drug trafficking offense for which the sentence imposed 

exceeded thirteen months, and then reduced three levels for acceptance of 

responsibility under U.S.S.G. § 3El.l. 

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based on an alleged prior conviction that was not found by a jury or admitted by 

Gluchowski, his sentence violates his Sixth Amendment rights under Blakely. 

During the pendency of this appeal, the Supreme Court decided United 

States v. Booker. in which the Court extended its holding in Blakely to apply to 

the federal Sentencing Guidelines. 125 S. Ct. 738, 756 (2005). The Court held 

that to satisfy the Sixth Amendment, "[ 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." Id. Similarly, the 

Supreme Court has held, prior to Booker, that 8 U.S.C. § 1326(b)(2), which 

authorizes sentence enhancements, is a penalty provision and does not define a 

separate crime. Almendarez-Torres v. United States, 523 U.S. 224, 226 (1998). 

"Consequently, neither the statute nor the Constitution requires the Government 

to charge the factor that it mentions, an earlier conviction, in the indictment." Id. 

at 226-27. This court has recently recognized that Almendarez-Torres remains 

good law in the aftermath of Booker. United States v. Moore, 40 I F.3d 1220, 

1224 (10th Cir. 2005). Thus, because the existence of a prior conviction is not a 

fact that must be proven to a jury beyond a reasonable doubt or admitted by a 

defendant, Gluchowski 's sentence does not violate the Sixth Amendment. See id. 

at 1223-24. 

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Although Gluchowski's sentence does not involve a Sixth Amendment 

violation, the ·'sentencing court [] err[ ed] by applying the Guidelines in a 

mandatory fashion, as opposed to a discretionary fashion." United States v. 

Gonzalez-Huerta, 403 F .3d 727, 731-32 (I 0th Cir. 2005) ( en bane). Because 

Gluchowski raised Blakely below, this sentencing error is reviewed for 

harmlessness. United States v. Labastida-Segura, 396 F.3d 1140, 1143 (10th Cir. 

2005). The government, however, has not asserted the error is harmless. See 

United States v. Lang,_ F .3d _, No. 04-4165, 2005 WL 834669, at *4 (10th 

Cir. Apr. 12, 2005). 

IV. CONCLUSION 

For the foregoing reasons, we REMAND the case for resentencing pursuant 

to Booker. 

ENTERED FOR THE COURT 

Michael R. Murphy 

Circuit Judge 

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