FILED 

United States Court of Appeals 

Tenth Circuit 

PUBLISH MAY 4 2005 

UNITED STATES COURT OF APPEALS PATRICK FISHER 

Clerk 

TENTH CIRCUIT 

UNITED ST A TES OF AMERICA, 

Plaintiff-Appellee, 

V. 

OSCAR SERRANO-DOMINGUEZ, 

Defendant-Appellant. 

No. 04-1398 

APPEAL FROM THE UNITED ST ATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO 

(D.C. NO. 04-CR-145-MK) 

Submitted on the briefs.• 

Raymond P. Moore, Federal Public Defender, and Edward R. Harris, Assistant 

Federal Public Defender, Denver, Colorado for Defendant-Appellant. 

William J. Leone, Acting United States Attorney, and Jerry N. Jones, Assistant 

United States Attorney, Denver, Colorado for Plaintiff-Appellee. 

Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges. 

McCONNELL, Circuit Judge. 

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

unanimously that oral argument would not materially assist in the determination 

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1 (G). This case is 

therefore submitted without oral argument. 

Appellate Case: 04-1398 Document: 010110617219 Date Filed: 05/04/2005 Page: 1
The defendant, Oscar Serrano-Dominguez, appeals his sentence of 33 

months imprisonment for illegally reentering the United States in violation of 8 

U .S.C. § 1326. Mr. Serrano-Dominguez argues that the use of the Federal 

Sentencing Guidelines ("Guidelines") to sentence him 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), and AFFIRM Mr. Serrano-Dominguez's sentence. 

I. 

Mr. Serrano-Dominguez was found in the United States on or about March 

8, 2004. The indictment alleged that he illegally reentered the country after he 

was convicted of an aggravated felony and deported. Mr. Serrano-Dominguez 

entered into a plea agreement, in which he admitted the conduct alleged in the 

indictment, and the government agreed to recommend a three-level decrease in his 

offense level for his acceptance of responsibility. The plea agreement stipulated 

that Mr. Serrano-Dominguez would be sentenced through the application of the 

Guidelines. 

The probation officer assigned a base offense level of 8, see U.S.S.G. § 

2L l .2(a) (2003), and applied an 8-level enhancement because Mr. SerranoDominguez had a prior conviction for an aggravated felony. See U.S.S.G. § 

2Ll.2(b)(l)(C). Mr. Serrano-Dominguez received a three-level reduction for 

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acceptance of responsibility, U.S.S.G. § 3E 1.1. Based on his total offense level 

of 13 and a criminal history category of VI, the presentence report determined 

that the permissible range for the sentence was 33 to 41 months. See U.S.S.G. ch. 

5 pt. A. 

Prior to sentencing Mr. Serrano-Dominguez filed a motion seeking to 

declare the Guidelines as a whole unconstitutional pursuant to Blakely. The 

district court denied the motion. However, before sentencing, the district court 

directed Mr. Serrano-Dominguez and his counsel to discuss his plea in light of 

Blakely. After this discussion, he signed a statement reaffirming the plea 

agreement with the knowledge that he had a Sixth Amendment right to have a jury 

find any sentence enhancing facts by a reasonable doubt. Mr. Serrano-Dominguez 

testified under oath that he accepted the provisions in the written statement. 

However, the signed statement reserved the right "to challenge the 

constitutionality of the U.S. Sentencing Guidelines." R. Vol. I Doc. 33 ,i 10. 

After establishing this waiver, the district court sentenced Mr. SerranoDominguez, under the Guidelines, to 33 months imprisonment. In addition, the 

district court imposed an alternative sentence of 33 months imprisonment in the 

event the Supreme Court changed the status of the Guidelines pursuant to Blakely. 

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II. 

Mr. Serrano-Dominguez appeals the district court's denial of his motion to 

declare the Sentencing Guidelines unconstitutional. In United States v. 

Labastida-Segura, we concluded that a similar appeal was sufficient to preserve a 

potential Sixth Amendment error pursuant to Booker, 396 F.3d 1140, 1142-43 

(10th Cir. 2005). Where a defendant preserves a potential Booker error, we will 

remand if the error was not harmless, i.e., the error did not affect the defendant's 

substantial rights. See id.; Fed. R. Crim. P. 52(a). 

There are two types of error under Booker: constitutional error and nonconstitutional error. See United States v. Gonzalez-Huerta, 2005 WL 807008 *2 

(10th Cir. 2005) ( en bane). Constitutional Booker error occurs when a judgefound fact (other than a prior conviction) increases a defendant's sentence beyond 

the maximum authorized by a jury's verdict or a plea of guilty through the 

application of mandatory guidelines. Booker, 125 S.Ct. at 756. Nonconstitutional error is a product of the remedial opinion in Booker, which severed 

the statutory provision requiring mandatory application of the Sentencing 

Guidelines in most cases. Id. at 764 (severing 18 U.S.C. § 3553(b)(l)). Severing 

this provision effectively rendered the Guidelines advisory, although sentencing 

courts must consult both the Guidelines and the factors listed in 18 U.S.C. 

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3553(a), 1 and appellate courts will reverse any sentences that are unreasonable. 

Id. at 767. Any sentence imposed through mandatory application of the 

Sentencing Guidelines, even where there is no Sixth Amendment violation, is 

erroneous. Gonzalez-Huerta, 2005 WL at *2. 

This case involves only non-constitutional error. In his guilty plea, Mr. 

Serrano-Dominguez admitted all the facts necessary to authorize his sentence, so 

his sentence does not implicate the Sixth Amendment. However, the district court 

applied a sentence at the bottom of the then-mandatory range provided by the 

Sentencing Guidelines. Accordingly, there was an error in Mr. SerranoDominguez's sentence, and we must determine whether or not this error was 

harmless. 

In Labastida-Segura, the defendant, like Mr. Serrano-Dominguez, admitted 

all the facts required to support his sentence and received a sentence at the bottom 

of the Guidelines range. 396 F.3d at 1142. We framed the harmless error 

analysis by asking whether the non-constitutional Booker error affected the 

sentence the defendant would receive under the post-Booker framework of 

consulting advisory Guidelines, the § 3553(a) factors, and review for 

1 18 U.S.C. § 3553(a) requires the sentencing court to consider factors such 

as the history and characteristics of the defendant, 18 U.S.C. § 3553(a)(l ), the 

sentencing range suggested by the Guidelines, id. § 3553(a)(4), and the need for 

sentencing uniformity for defendants with similar criminal histories and found 

guilty of similar conduct, id. § 3553(a)(6). 

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unreasonableness. Id. Because this inquiry would have "place[ d] us in the zone 

of speculation and conjecture" we could not conclude that the error in Mr. 

Labastida-Segura's sentence was harmless. Id. at 1143. Accordingly, we 

remanded the case for resentencing. 

Mr. Serrano-Dominguez urges us to reach the same result. He contends 

that if we remand his case, it is possible that the district court, untethered from 

the mandatory Guidelines, will impose a shorter sentence than the one he initially 

received. He argues that the Court would have to engage in prohibited 

speculation and conjecture to conclude that he would receive the same sentence 

on remand. The analysis of whether Booker errors affect substantial 

rights--either under the rubric of harmless error or plain error-has produced 

much hand wringing by appellate courts. Fortunately, we do not need to read any 

tea leaves to determine what the district court would do on remand. 

With commendable prescience, the district court announced an alternative 

sentence, which applied the methodology suggested by Booker. Before doing so, 

the district court asked Mr. Serrano-Dominguez "is it your desire to have an 

alternative sentence imposed here?" Through counsel, Mr. Serrano-Dominguez 

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answered: "Sure, your honor. Yes." 2 The district court determined the 

alternative sentence by applying the § 3553(a) factors relevant to the defendant: 

In considering [the § 3553(a)] factors, I note that the defendant 

has a substantial criminal record. He has an apparent substance 

abuse problem. He has worked here in the United States but 

apparently has no valid Social Security number and has paid no 

taxes. He has apparently acquired assets, but it's unclear how these 

assets came to be acquired and what the disposition of these assets is. 

Under these circumstances outside the guidelines and 

considering the statutory factors, I would intend to impose precisely 

the same sentence as the guidelines require, 33 months of 

incarceration .... 

R. Vol. II at 19. The alternative sentence was exactly the same as the sentence 

determined using the mandatory Guidelines: 33 months. 

The district court's statement eliminates any need to speculate about what it 

would do on remand. Cf United States v. Urbanek, 930 F.3d 1512, 1515-16 (10th 

Cir. 1991) (finding that error was not harmless when the district court did not 

"specifically state" that a defendant's sentence would be the same under the 

correct offense level). The district court applied the sentencing methodology 

suggested in Booker and concluded that even if the Guidelines were not 

mandatory Mr. Serrano-Dominguez would receive the same sentence. 

Consequently, the error in his sentence is harmless. A remand would needlessly 

2 At the beginning of the sentencing hearing, the district court asked the 

parties if they wished to supplement the record, and both before and after 

explaining the basis for the alternative sentence, the court invited the parties to 

make "further argument." Counsel declined both invitations. 

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burden the district court and counsel with another sentencing proceeding, which 

we know would produce the same result. Mr. Serrano-Dominguez's sentence is 

AFFIRMED. 

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