FILED 

United States Court of Appeals 

Tenth Circuit 

UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

APR25 2005 

PATRICK FISHER 

Clerk 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

V. 

ESEQUEIL SALAZARSAMANIEGA, 

Defendant-Appellant. 

No. 04-2171 

(D.C. No. CR 01-1651 JP) 

(D. New Mexico) 

ORDER AND JUDGMENT* 

Before BRISCOE, HOLLOWAY, and MURPHY, Circuit Judges. 

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.l(G). The case is 

therefore ordered submitted without oral argument. 

This is an appeal by defendant Esequeil Salazar-Samaniega of his sentence 

*This order and judgment is not binding precedent, except under the 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

Appellate Case: 04-2171 Document: 010110593179 Date Filed: 04/25/2005 Page: 1
following a prior remand by this court for resentencing. We again remand for 

resentencing. 

Defendant was found guilty of possessing cocaine with intent to distribute, 

in violation of 21 U.S.C. § 841 (a)(l) and (b)(l)(B). He was sentenced to 78 

months in prison, which included an upward adjustment for obstruction of justice 

resulting from the district court's finding that he committed perjury at the 

suppression hearing. The district court reduced his sentence for acceptance of 

responsibility even though defendant forced the government to trial. On direct 

appeal, defendant contended the district court erred in enhancing his sentence for 

obstruction of justice under U.S.S.G. § 3Cl.l, in failing to apply the "safety 

valve" adjustment under U.S.S.G. § 5Cl.2(5), and in refusing to conclude he was 

a "minor" or "minimal" participant under U.S.S.G. § 3B1.2. The government 

cross-appealed, contending the court erred in adjusting his sentence downward for 

acceptance of responsibility under U.S.S.G. § 3El.l. In his direct appeal, which 

challenged only defendant's sentence, this court affirmed on the issues raised by 

defendant, but remanded for resentencing based on the government's crossappeal. United States v. Salazar-Samaniega, 361 F.3d 1271 (10th Cir. 2004). 

On June 24, 2004, defendant was resentenced. The district court applied 

the sentencing guidelines and determined the adjusted guideline range was 30, the 

criminal history category was I, and the resulting guideline range was 97-121 

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months. The court sentenced defendant at the bottom of the range to a term of 97 

months. 

The United States Supreme Court filed its ruling in Blakely v. Washington, 

128 S. Ct. 2531 (2004), on the same date that defendant was resentenced. 

Counsel for defendant filed a Rule 35(a) motion to correct sentence on June 30, 

2004, citing Blakely and contending the district court had violated defendant's 

Sixth Amendment rights by finding defendant had obstructed justice by 

committing perjury. The court did not rule on the motion and defendant filed a 

notice of appeal challenging the sentence. 

While this case was pending on appeal, the United States Supreme Court 

filed its ruling in United States v. Booker, 125 S. Ct. 738 (2005), on January 12, 

2005. Booker held that it applied to all direct criminal appeals then pending. In 

response to the ruling, this court ordered the parties in this case to file 

supplemental briefs to address Booker. 

The parties are in agreement that defendant has properly preserved 

Blakely/Booker error and that a remand for resentencing under our recent decision 

in United States v. Labastida-Segura, 396 F.3d 1140, 1143 (10th Cir. 2005), 

(applying harmless error review) is required. 

Remanded for resentencing in accordance with Booker. The mandate shall 

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Appellate Case: 04-2171 Document: 010110593179 Date Filed: 04/25/2005 Page: 3
issue forthwith. 

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Entered for the Court 

Mary Beck Briscoe 

Circuit Judge 

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