UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

UNITED STATES OF AMERICA, 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 23, 2005 

PATRICK FISHER 

Clerk 

Plaintiff-Appellee, No. 04-2233 

V. 

JESUS PEREZ-HERNANDEZ, 

Defendant-Appellant. 

(D. New Mexico) 

(D.C. No. CR-04-974-RB) 

ORDER AND JUDGMENT* 

Before EBEL, McKAY, and HENRY, Circuit Judges. 

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

unanimously that oral argument would not materially llssist 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. 

On May 20, 2004, Mr. Perez-Hernandez was indicted on one count of 

illegal reentry into the United States after deportation and conviction for an 

* This order and judgment is not binding precedent, except under the 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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aggravated felony, in violation of 8 U.S.C. §§ 1326(a)(l), (2), and (b)(2). On 

June 8, 2004, Mr. Perez-Hernandez pleaded guilty to the indictment without a 

plea agreement. On August 20, 2004, the district court sentenced Mr. PerezHernandez to 57 months of imprisonment. Mr. Perez-Hernandez now appeals his 

sentence, contending the district court erred in applying an enhancement for his 

prior conviction for an aggravated felony. He claims that enhancements for prior 

convictions must be based on facts found by a jury, as required under Blakely v. 

Washington,_ U.S._, 124 S. Ct. 2531 (Jun. 24, 2004) and United States v. 

Booker,_ U.S._, 125 S. Ct. 738 (Jan. 12, 2005). We exercise jurisdiction 

pursuant to 28 U.S.C. § 1291, and affirm Mr. Perez-Hernandez's conviction and 

sentence. 

I. BACKGROUND 

Mr. Perez-Hernandez was arrested on Mach 29, 2004 and charged with 

illegally reentering the United States after having been deported. He had been 

deported to Mexico on April 21, 2001, after his convictions in Forsyth County, 

Georgia for possession with intent to distribute methamphetamine and possession 

with intent to distribute marijuana. He received a sentence of ten years for the 

state convictions; after he served two years in prison he was placed on probation 

for the remaining eight years. 

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According to the presentence report, Mr. Perez-Hernandez's base offense 

level was 8, pursuant to United States Sentencing Guidelines Manual§ 2Ll.2(a). 

The probation officer recommended that Mr. Perez-Hernandez receive a 16-level 

upward adjustment pursuant to USSG §2L l.2(b )(1 )(A)(ii) because he had the two 

prior drug convictions in Georgia and had served a prison term of more than 

thirteen months. The probation officer recommended that Mr. Perez-Hernandez 

receive a three-level downward adjustment to his offense level for acceptance of 

responsibility pursuant to USSG § 3El.1. Mr. Perez-Hernandez's adjusted 

offense level was thus 21. 

Mr. Perez-Hernandez was in criminal history category IV. His criminal 

history category was based on three criminal history points for each prior drug 

conviction and two points for having committed the instant offense while on 

probation from the drug convictions. The resulting guideline range was 57 to 71 

months. 

Mr. Perez-Hernandez made no objection to the sentencing recommendations 

in the presentence report, including the fact he was previously convicted for 

distribution and possession. Similarly, at the sentencing hearing, neither Mr. 

Perez-Hernandez nor his attorney objected to the factual statements in the 

presentence report concerning his prior conviction. On August 20, 2004, the 

district court adopted the findings of the presentence report and sentenced Mr. 

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Perez-Hernandez to 57 months of imprisonment and two years of supervised 

release. 

II. DISCUSSION 

Mr. Perez-Hernandez timely filed his appeal, and, for the first time, 

challenges the continued viability of Almendarez-Torres v. United States, 523 

U.S. 224, 243-44 ( 1998), which held that the fact of a prior conviction is an 

exception to the rule that all facts which raise the maximum sentence must be 

submitted to a jury and proved beyond a reasonable doubt. As a result, he 

suggests Almendarez-Torres was wrongly decided, and that sentencing 

enhancements made on the basis of prior convictions must be authorized by a jury 

verdict or a defendant's admission. 

In addition, Mr. Perez-Hernandez suggests that because the Guidelines are 

now advisory rather than mandatory, in the wake of Booker, he is entitled to a 

remand for resentencing on grounds that his previous sentence was imposed in 

violation of law under an unconstitutional interpretation of the Guidelines. Mr. 

Perez-Hernandez contends that this error amounts to plain error. 

Mr. Perez-Hernandez acknowledges that because he has neither previously 

objected to the fact of his conviction nor previously raised any potential Sixth 

Amendment or non-constitutional Booker violation, we review the district court's 

sentence under the plain error standard set forth in United States v. Olano, 507 

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U.S. 725,731, (1993). See also FED. R. CRIM. P. 52(b). Under the plain error 

standard, an appellant must clear several hurdles: 

[T]he error must ( 1) be an actual error that was forfeited; (2) be plain 

or obvious; and (3) affect substantial rights, in other words, in most 

cases the error must be prejudicial, i.e., it must have affected the 

outcome of the trial. . . . Given plain error that affects substantial 

rights, an appellate court should exercise its discretion and notice 

such error where it either (a) results in the conviction of one actually 

innocent, or (b) seriously affects the fairness, integrity or public 

reputation of judicial proceedings. 

United States v. Keeling, 235 F.3d 533, 538 (10th Cir. 2000) (internal quotation 

marks and citations omitted). 

A. Sixth Amendment/Almendarez-Torres Claim 

Although we acknowledge that Almendarez-Torres has been called into 

question, it has not been overruled. In Shepard v. United States, 2005 WL 

516494, *9 (U.S. Mar. 7, 2005), Justice Thomas, in a concurring opinion, noted 

that: 

Almendarez-Torres ... has been eroded by this Court's subsequent 

Sixth Amendment jurisprudence, and a majority of the Court now 

recognizes that Almendarez-Torres was wrongly decided .... The 

parties do not request it here, but in an appropriate case, this Court 

should consider Almendarez-Torres' continuing viability. 

Innumerable criminal defendants have been unconstitutionally 

sentenced under the flawed rule of Almendarez-Torres, despite the 

fundamental "imperative that the Court maintain absolute fidelity to 

the protections of the individual afforded by the notice, trial by jury, 

and beyond-a-reasonable-doubt requirements." Harris v. United 

States, 536 U.S. 545, 581-582, (2002) (Thomas, J., dissenting). 

2005 WL 516494, *9 (U.S. Mar. 7, 2005) (Thomas, J., concurring in part). 

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Despite this admonition, "as an inferior federal court we have the 

responsibility to follow directly applicable Supreme Court decisions." United 

States v. Ordaz, 398 F .3d 236, 241 (3d Cir. 2005). "The holding in 

Almendarez-Torres remains binding law, and nothing in Blakely or Booker holds 

otherwise. Thus, because we are bound by Almendarez-Torres, we hold that the 

district court's determination regarding the facts of [Mr. Perez-Hernandez's] prior 

convictions did not violate the Sixth Amendment, notwithstanding that the 

sentences were based, in part, on facts found by a judge rather than a jury." Id. 

Furthermore, the Supreme Court in Blakely unequivocally restated the 

proposition announced in Apprendi, 530 U.S. at 490: "[o ]ther than the fact of a 

prior conviction, any fact that increases the penalty for a crime beyond the 

prescribed ... maximum must be submitted to a jury, and proved beyond a 

reasonable doubt." Blakely, 124 S. Ct. at 2536 (emphasis added); see also United 

States v. Cooper, 375 F.3d 1041, 1052-53 n.3 (10th Cir.), cert. denied, 125 S. Ct. 

634 (2004). Furthermore, in Booker, the Supreme Court reaffirmed the 

proposition that the fact of a prior conviction is an exception to factual jury 

submissions: 

[W]e reaffirm our holding in Apprendi: Any 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. 

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125 S. Ct. at 756 (emphasis added). Thus, we reject Mr. Perez-Hernandez's 

argument that the decision in Blakely prohibits enhancement of his sentence for 

his prior conviction because a jury did not make a factual determination as to that 

conviction. No question of fact existed for a jury to decide. As to this issue, Mr. 

Perez-Hernandez cannot not show there was any error, much less plain error. 

B. Non-constitutional error 

Similarly Mr. Perez-Hernandez cannot establish that the sentencing court 

would have reached a different sentence had it known the guidelines were 

advisory and not mandatory. Although we have determined that such an error is 

"plain," under the first and second prongs of the Olano test, "the primary issue .. 

. is whether Mr. [Perez-Hernandez] can satisfy both the third and fourth prongs of 

plain-error review." United States v. Gonzalez-Huerta, 2005 WL 807008, *3 

(10th Cir. 2005) (en bane). To satisfy the third prong of Giana's plain error 

analysis, Mr. Perez-Hernandez retains the burden to show that his substantial 

rights were affected. See id. In addition, pursuant to the fourth prong, "we will 

not notice a non-constitutional error, such as the one in the case before us, unless 

it is both 'particularly egregious' and our failure to notice the error would result 

in a 'miscarriage of justice."' Id. 

As we held in Gonzalez-Huerta, where the defendant raised a similar 

challenge, here, Mr. Perez-Hernandez "fails to meet his burden to satisfy the 

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fourth prong of plain-error review." Id. at 8. In his reply brief on appeal, he 

offers little more than the assertion that "absent the constrictions of the 

Guidelines, the sentencing court would have been free to more fully consider Mr. 

Perez-Hernandez's circumstances and determine a reasonable sentence." Aplt's 

Reply Br. at 3. Without more, "we cannot hold, based upon the culmination of 

these factors, that the mandatory application of the Guidelines in this case-while 

error-is a particularly egregious one that would result in a miscarriage of justice 

or otherwise call the judiciary into disrepute unless we remanded." GonzalezHuerta, 2005 WL 807008, at *9. 

III. CONCLUSION 

For the reasons stated above, we AFFIRM Mr. Perez-Hernandez's 

conviction and sentence. 

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Entered for the Court, 

Robert H. Henry 

Circuit Judge 

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