FILED 

United States Court of Appeals 

Tenth Circuit 

UNITED STATES COURT OF APPEALS APR 28 2005 

TENTH CIRCUIT PATRICK FISHER 

Clerk 

UNITED ST A TES OF AMERICA, 

Plainti ff-Appellee, 

V. 

CRUZ MANUEL QUINT ANAPONCE, 

Defendant-Appellant. 

No. 04-2222 

(D.C. No. 04-309 RB) 

(New Mexico) 

ORDER AND JUDGMENT* 

Before SEYMOUR, KELLY, and TYMKOVICH, Circuit Judges. 

Cruz Manuel Quintana-Ponce pled guilty to one count of illegal reentry 

following deportation in violation of 8 U.S.C. §§ 1326(a)(l), (2) and (b)(2). 

Based on a criminal history category of III and a total offense level of thirteen, 

Mr. Quintana's guidelines range was eighteen to twenty-four months 

*After examining appellant's brief and the 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) and 10th Cir. R. 

34.1 (G). The case is therefore submitted without oral argument. This order and 

judgment is not binding precedent, except under the doctrines of law of the case, 

res judicata, or 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: 04-2222 Document: 010110615344 Date Filed: 04/28/2005 Page: 1
imprisonment. The district court sentenced him at the bottom of that range to an 

eighteen month term. On appeal, Mr. Quintana contends the district court 

committed error at sentencing by assessing criminal history points for prior 

uncounseled misdemeanor convictions. He also contends his sentence was 

unconstitutionally enhanced pursuant to Blakely v. Washington, 124 S. Ct. 2531 

(2004), based on a finding of the existence and nature of prior convictions which 

were neither charged in the indictment nor proven to a jury. We affirm in part 

and reverse in part, remanding for resentencing. 1 

Mr. Quintana pled guilty to one count of illegal reentry following 

deportation, which yielded a base offense level of eight. U.S.S.G. § 2L 1.2(a). 

His presentence report (PSR) recommended an eight level increase due to a 

finding that Mr. Quintana had a prior aggravated felony conviction. Id. § 

2L 1.2(b )( 1 )(C). The PSR also recommended a three-level downward adjustment 

to his offense level for acceptance of responsibility, id. §3El. l, resulting in a 

total offense level of thirteen. 

Mr. Quintana's criminal history included points for a 1995 conviction for 

drunk driving, a 2000 conviction for careless driving and possession of cocaine, a 

2000 conviction for drunk driving, a 2001 conviction for concealment of identity, 

1

We note that Mr. Quintana has been incarcerated on his eighteen month 

sentence since early December 2003. Therefore, unless his resentencing is 

expedited, he will be released before it can be accomplished. 

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and a 2002 conviction for obstructing a police officer. He objected to the points 

assessed for three of those convictions, arguing that they were constitutionally 

infirm because he had been denied his right to counsel in state court proceedings. 

He contends the government failed to produce evidence that he either was 

represented by counsel or waived the right to counsel. The government submits 

that a presumption of regularity attaches to state court convictions and Mr. 

Quintana failed to meet his burden to overcome the presumption. We agree. 

Mr. Quintana had a right to counsel for the prior misdemeanor convictions. 

See Argersinger v. Hamlin, 407 U.S. 25, 3 7 (1972); see also Alabama v. Shelton, 

535 U.S. 654, 657-58 (2002). Once the government establishes the existence of a 

prior conviction, however, it becomes the defendant's burden to prove by a 

preponderance of evidence that the conviction was unconstitutional. United 

States v. Cruz-Alcala, 338 F.3d 1194, 1197 (10th Cir. 2003); United States v. 

Windle, 74 F.3d 997, 1001 (10th Cir. 1996). This is because a "presumption of 

regularity" attaches to final judgments even when a waiver of constitutional rights 

is at issue. Parke v. Raley, 506 U.S. 20, 29 ( 1992). 

Mr. Quintana has not met his burden to overcome the presumption of 

regularity. Much like the defendant in Cruz-Alcala, Mr. Quintana offered 

testimony that he was not represented by counsel and did not knowingly waive his 

right to counsel in the state court proceedings at issue. See 338 F.3d at 1198. 

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After considering Mr. Quintana's testimony, the district court implicitly found he 

was not credible and ruled that he had validly waived his right to counsel in the 

earlier cases: 

[t]aking [defendant's] proffer at face value and weighing that against his 

significant history associated with the criminal courts in that area ... I 

don't believe that he has overcome the presumption of regularity that 

attaches to final Judgments. 

Sent. Tr. at 14. We must defer to the district court's credibility determinations. 

Cruz-Alcala, 338 F.3d at 1198. As a result, we conclude the district court did not 

commit error by including Mr. Quintana's prior uncounseled misdemeanor 

convictions in calculating his criminal history. 

Mr. Quintana next argues his Sixth Amendment rights were violated 

because neither the existence of his prior convictions nor the classification of any 

of those convictions as aggravated felonies was charged in his indictment, 

admitted by him, or found by a jury, citing Blakely. In Blakely, the Supreme 

Court applied the rule it expressed in Apprendi v. New Jersey, 530 U.S. 466 

(2000), to Washington state's determinate sentencing regime. See Blakely, 124 S. 

Ct. at 2536. Recently, the Court extended Apprendi and Blakely to the Federal 

Sentencing Guidelines, holding that the Sixth Amendment requires "[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 

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doubt." United States v. Booker, 125 S. Ct. 738, 756 (2005). 

The district court's findings that Mr. Quintana previously committed crimes 

and that at least one of those crimes was an aggravated felony fall within the 

exception to the Blakely/Booker rule for the "fact of a prior conviction." Blakely, 

124 S. Ct. at 2536. Although an indictment must set forth each element of the 

crime it charges, the Supreme Court has explicitly held that the constitution does 

not require Congress to treat recidivism as an element of the offense. 

Almendarez-Torres v. United States, 523 U.S. 224,247 (1998). Therefore, the 

government's failure to plead Mr. Quintana's prior convictions (or the nature of 

those convictions) in his indictment does not constitute constitutional error. See 

United States v. Moore, 401 F.3d 1220, 1221 (10th Cir. 2005) ("Booker . .. do[ es] 

not require the government to charge in an indictment or prove to a jury either the 

existence of prior convictions or their classification as 'violent felonies"'). 

If Booker consisted only of a constitutional holding, Mr. Quintana's appeal 

would be meritless because he did not suffer a Sixth Amendment violation. 

However, to remedy the guidelines' constitutional violation, the Court severed 

and excised 18 U.S.C. § 3553(6)(1), which required sentencing courts to impose a 

sentence within the applicable guidelines range, subject to departures in limited 

cases. Booker, 125 S. Ct. at 764-65. As a result, the guidelines are now advisory 

in all cases. Id. at 757, 769. In addition, the Court expressly stated that its 

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"remedial interpretation of the Sentencing Act" must be applied "to all cases on 

direct review." Id. at 769. We must therefore apply the remedial holding of 

Booker to Mr. Quintana's appeal and review his sentence for harmless error. 

United States v. Labastida-Segura, 396 F .3d 1140, 1142 (10th Cir. 2005). 

The district court plainly sentenced Mr. Quintana with the erroneously held 

belief that it was required to impose a sentence within the guidelines range. See 

id. at 1143. We held in Labastida-Segura that where the district court sentenced 

a defendant (who properly preserved his non-constitutional Booker error for 

appellate review) at the bottom of the guidelines range, we cannot conclude that 

the error is harmless. Id. That holding is applicable here. 

Accordingly, we AFFIRM the district court's determination that Mr. 

Quintana's misdemeanor convictions were properly counted against him, but we 

REMAND his case with directions to the district court to vacate his sentence and 

resente:nce him in light of Booker. 

ENTERED FOR THE COURT 

Stephanie K. Seymour 

Circuit Judge 

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