* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially 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 o ral 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel.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 ge nerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 28 2005 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.CRUZ MANUEL QUINTANAPONCE, 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 countof illegal reentry following deportation in violation of 8 U.S.C. §§ 1 326(a)(1), (2) and (b)(2). Based on a criminal history category of III and a t otal offense level of thirteen, Mr. Quintana’s guidelines range was eighteen to twe nty-four months1 We note that Mr. Quintana has been incarcerated on his eighteen month

sentence since early December 2003. Therefore, unl ess his resentencing is expedited, he will be released before it can be acc omplished. -2- imprisonment. The district court sentenced him at the bottom of that range to an eighteen month term. On appeal, Mr. Quintana conte nds the district court committed error at sentencing by assessing criminal history points for prior uncounseled misdemeanor convictions. He also conte nds his sentence was unconstitutionally enhanced pursuant to Blakely v. Washington , 124 S. Ct. 2531 (2004), based on a finding of the existence and nat ure of prior convictions which were neither charged in the indictment nor proven t o a jury. We affirm in part and reverse in part, remanding for resentencing. 1 Mr. Quintana pled guilty to one count of illegal re entry following deportation, which yielded a base offense level of eight. U.S.S.G. § 2L1.2(a). His presentence report (PSR) recommended an eight l evel increase due to a finding that Mr. Quintana had a prior aggravated fe lony conviction. Id . § 2L1.2(b)(1)(C). The PSR also recommended a three-l evel downward adjustment to his offense level for acceptance of responsibili ty, id . §3E1.1, resulting in a total offense level of thirteen. Mr. Quintana’s criminal history included points fora 1995 conviction for drunk driving, a 2000 conviction for careless drivi ng and possession of cocaine, a 2000 conviction for drunk driving, a 2001 convictio n for concealment of identity,-3-

and a 2002 conviction for obstructing a police offi cer. He objected to the points assessed for three of those convictions, arguing th at they were constitutionally infirm because he had been denied his right to coun sel in state court proceedings. He contends the government failed to produce eviden ce that he either was represented by counsel or waived the right to couns el. 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 m isdemeanor convictions. See Argersinger v. Hamlin , 407 U.S. 25, 37 (1972); see also Alabama v. Shelton , 535 U.S. 654, 657-58 (2002). Once the government e stablishes the existence of a prior conviction, however, it becomes the defendant ’s burden to prove by a preponderance of evidence that the conviction was u nconstitutional. 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 beca use a “presumption of regularity” attaches to final judgments even when awaiver 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 an d did not knowingly waive his right to counsel in the state court proceedings at issue. See 338 F.3d at 1198.-4-

After considering Mr. Quintana’s testimony, the dis trict court implicitly found he was not credible and ruled that he had validly waiv ed his right to counsel in the earlier cases: [t]aking [defendant’s] proffer at face value and we ighing that against his significant history associated with the criminal co urts 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 cou rt’s credibility determinations. Cruz-Alcala , 338 F.3d at 1198. As a result, we conclude the d istrict court did not commit error by including Mr. Quintana’s prior unco unseled misdemeanor convictions in calculating his criminal history. Mr. Quintana next argues his Sixth Amendment rights were violated because neither the existence of his prior convicti ons 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 sentencin g regime. See Blakely , 124 S. Ct. at 2536. Recently, the Court extended Apprendiand Blakelyto the Federal Sentencing Guidelines, holding that the Sixth Amend ment 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-5-

doubt.” United States v. Booker , 125 S. Ct. 738, 756 (2005). The district court’s findings that Mr. Quintana pre viously committed crimes and that at least one of those crimes was an aggrav ated felony fall within the exception to the Blakely/Bookerrule for the “fact of a prior conviction.” Blakely , 124 S. Ct. at 2536. Although an indictment must s et 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 elem ent 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 const itute 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 indictme nt or prove to a jury either the existence of prior convictions or their classificat ion as ‘violent felonies’”). If Bookerconsisted only of a constitutional holding, Mr. Qu intana’s appeal would be meritless because he did not suffer a Sixth Amendment violation. However, to remedy the guidelines’ constitutional v iolation, the Court severed and excised 18 U.S.C. § 3553(b)(1), which required sentencing courts to impose a sentence within the applicable guidelines range, su bject to departures in limited

cases. Booker , 125 S. Ct. at 764-65. As a result, the guideline s are now advisory in all cases. Id . at 757, 769. In addition, the Court expressly st ated that its-6-

“remedial interpretation of the Sentencing Act” mus t be applied “to all cases on direct review.” Id . at 769. We must therefore apply the remedial hol ding of Booker to Mr. Quintana’s appeal and review his sentence fo r harmless error. United States v. Labastida-Segura , 396 F.3d 1140, 1142 (10th Cir. 2005). The district court plainly sentenced Mr. Quintana w ith the erroneously held belief that it was required to impose a sentence wi thin the guidelines range. See id . at 1143. We held in Labastida-Segurathat where the district court sentenced a defendant (who properly preserved his non-constitutional Booker error for appellate review) at the bottom of the guidelines r ange, 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 co unted against him, but we REMAND his case with directions to the district court to v acate his sentence and resentence him in light of Booker

.
ENTERED FOR THE COURT Stephanie K. Seymour Circuit Judge