* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### December 13, 2005

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 04-2273

v. (D. New Mexico)GERARDO ANCHONDORASCONDO,

Defendant-Appellant. (D.C. No. CR-03-2214-JB)

ORDER AND JUDGMENT *

Before EBEL , McKAY , and HENRY , Circuit Judges.
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 F ED
. R. A PP
. P. 34(a); 10 TH C IR
. R. 34.1(G). Mr. Anchondo-Rascondo pleaded guilty to illegally r eentering the United States after having been deported following convict ion of an aggravated felony, in violation of 8 U.S.C. § 1326(b)(2). The district c ourt sentenced him to 70-2-

months’ imprisonment, and stated at sentencing its intent to impose an identical alternative sentence if the Guidelines were declare d unconstitutional. Mr. Anchondo-Rascondo appeals his sentence, in light of United States v. Booker , 125 S. Ct. 738 (2005), and seeks a remand for resentenc ing. He also contends that the district court improperly calculated his criminal h istory. We conclude that the non-constitutional sentencing error was harmless, and the district court did not err in its calculation of his criminal history. Exerci sing jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s sentence. I. BACKGROUND On September 1, 2003, United States Border Patrol a gents arrested Mr. Anchondo-Rascondo near Lordsburg, New Mexico. On N ovember 4, 2003, he pleaded guilty to reentering the United States ille gally after having been deported following conviction for an aggravated felony. He had been previously deported from the United States to Mexico in May 2002, afterbeing convicted of unlawful possession with intent to deliver cocaine. The pre-sentence report (“PSR”) determined that M r. AnchondoRascondo’s base offense level was 8. See U.S.S.G. § 2L1.2(a). It recommended a sixteen-level enhancement for a prior drug traffi cking offense, see U.S.S.G. § 2L1.2(b)(1)(A), and a three-level downward adjustme nt for acceptance of responsibility, see U.S.S.G. § 3E1.1. With an adjusted offense level o f 21, and a-3-

criminal history category V, the Guidelines range w as 70 to 87 months. Mr. Anchondo-Rascondo objected to the sixteen-level enhancement, arguing that it violated his right to a jury trial under Blakely v. Washington , 542 U.S. 296 (2004). He also objected to the PSR’s det ermination that he had ten criminal history points. Two of those points resul ted from committing the instant offense while under probation in Minnesota. See U.S.S.G. § 4A1.1(d). The district court overruled his Blakely objections, and it adopted the PSR’s factual findings and Guidelines recommendatio ns. It sentenced Mr. Anchondo-Rascondo to 70 months’ imprisonment, follo wed by two years’ supervised release. It also ordered a $100 special assessment. The district court then announced an identical alternative sentence “[ i]f the Tenth Circuit or the Supreme Court declare[s] unconstitutional the guide lines.” Rec. vol. III, at 14 (Sentencing Hr’g, dated Sept. 21, 2004). On appeal, Mr. Anchondo-Rascondo argues that the di strict court (1) violated his Sixth Amendment rights under Booker , and (2) erred in calculating his criminal history. II. DISCUSSION A. Booker claim The Supreme Court in Booker stated that sentencing courts may have committed two types of error when applying the then -mandatory Guidelines:-4-

constitutional and non-constitutional error. Const itutional Booker error occurs when a court “rel[ies] upon judge-found facts, othe r than those of prior convictions, to enhance a defendant’s sentence mand atorily,” in violation of the Sixth Amendment. United States v. Gonzalez-Huerta , 403 F.3d 727, 731 (10th Cir. 2005) (en banc). A court commits non-constitutional Booker error when it “appl[ies] the Guidelines in a mandatory fashion, a s opposed to a discretionary fashion, even though the resulting sentence was cal culated solely upon facts that were admitted by the defendant, found by the jury, or based upon the fact of a prior conviction.” Id. at 731-32. The government concedes that the district court com mitted nonconstitutional error when the court applied the Gui delines as though they were mandatory. This case, however, does not involve co nstitutional error. The sixteen-level enhancement was based on a November 2 001 drug trafficking felony conviction, and Mr. Anchondo-Rascondo admitted suchconviction at his plea hearing. Rec. vol. IV, at 15-16 (Plea Hr’g, dated Nov. 4, 2003). Further, neither the existence of a prior conviction nor its classif ication as an enhancement under Section 2L1.2(b)(1)(A) of the Guidelines constitute s facts that must be included in an indictment or proven to a jury. United States v. Moore , 401 F.3d 1220, 1226 (10th Cir. 2005) (concluding that the facts of a prior conviction and its classification as a “violent felony” need not be ch arged in an indictment or-5-

determined by a jury); see United States v. Gallegos-Aguero, 409 F.3d 1274, 1276 (11th Cir. 2005) (“[T]here is no Sixth Amendment vi olation when a district court enhances a sentence based on prior convictions, inc luding those specified in § 2L1.2(b)(1)(A).”); see also Booker , 125 S. Ct. at 756 (“Any fact ( other than a prior conviction ) which is necessary to support a sentence exceedin g the maximum authorized by the facts established by a pl ea of guilty or a jury verdict must be admitted by the defendant or proved to a ju ry beyond a reasonable doubt.”) (emphasis supplied). Mr. Anchondo-Rascondo preserved his Blakely objection below, and we thus review his non-constitutional sentencing errorfor harmlessness. See United States v. Labastida-Segura , 396 F.3d 1140, 1142-43 (10th Cir. 2005) (stating that

a Blakely objection sufficiently preserves a claim of error underBooker ). “Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.” F ED
. R. C RIM . P. 52(a). “In non-constitutional harmless error cases, the government bears the burden of demonstrating, by a preponderance of the evidence, that the substantial rights of the de fendant were not affected.” United States v. Glover , 413 F.3d 1206, 1210 (10th Cir. 2005).
In Labastida-Segura , 396 F.3d at 1143, we concluded that a nonconstitutional Booker error was not harmless when a defendant was sentenc ed at the bottom of the Guidelines range and the court di d not indicate how it would-6-

impose a discretionary sentence “given the new lega l landscape.” However, if the district court proposed an alternative sentence und er a discretionary Guidelines scheme, a remand for resentencing may not be necess ary. In United States v. Serrano-Dominguez , 406 F.3d 1221, 1223 (10th Cir. 2005), “the distri ct court announced an alternative sentence, which applied th e methodology suggested by Booker ” and considered the factors set forth in 18 U.S.C. § 3553(a) that were relevant to the defendant. We deemed the non-const itutional error there to be harmless because “[t]he district court applied the sentencing methodology suggested in Booker and concluded that even if the Guidelines were not mandatory [the defendant] would receive the same se ntence.” Id. at 1224; see also United States v. Mathenia , 409 F.3d 1289, 1292 (11th Cir. 2005) (finding a non-constitutional Booker error to be harmless where the district court state d it would impose the same sentence if the Guidelines we re held unconstitutional as mandatorily applied); United States v. Thompson , 403 F.3d 533, 536 (8th Cir. 2005) (concluding that non-constitutional Booker error was harmless because the district court stated an identical alternative sent ence). Here, the district court announced an identical alt ernative sentence for Mr. Anchondo-Rascondo in case the Guidelines were ruledunconstitutional. As a result, we are not “in the zone of speculation and conjecture,” as we were in Labastida-Segura, 396 F.3d at 1143, and “we do not need to read any tea leaves-7-

to determine what the district court would do on re mand,” Serrano-Dominiguez , 406 F.3d at 1223. Nonetheless, Mr. Anchondo-Rascondo argues that we s hould remand for resentencing because the district court did not exp ressly consider the relevant factors outlined in 18 U.S.C. § 3553(a) when it ann ounced the alternative sentence. According to him, the “sentencing court must consider the sentence calculated using the Guidelines and related policy statements in conjunction with the other sentencing considerations listed in Secti on 3553(a).” Aplt’s Br. at 9. However, even prior to Booker , the Sentencing Reform Act instructed judges to consider the factors outlined in § 3553(a) when imp osing sentences. See 18 U.S.C. § 3553(a) (“The court, in determining the pa rticular sentence to be imposed, shall consider [those factors].”); see also United States v. Rines , 419 F.3d 1104, 1107 (10th Cir. 2005) (noting that, in acase where the district court imposed an identical discretionary sentence, “[i]t is true that the district court did not march through § 3553(a)’s sentencing factors, b ut we have never imposed such a requirement”). Further, the district court adopted the PSR’s factu al findings and Guidelines applications as to Mr. Anchondo-Rascondo . The PSR explicitly considered relevant § 3553(a) factors. It examinedhis offender characteristics, including personal and family data, educational and vocational skills, and-8-

employment; it also outlined various sentencing opt ions regarding the terms of his custody, supervised release, fine, and special asse ssment. Rec. vol. II, at 9-12. B. Criminal history calculation Finally, we reject Mr. Anchondo-Rascondo’s c ontention that the district court erred in adding two criminal history categorypoints under Section 4A1.1(d) of the Guidelines. That provision applies “if the defendant committed the instant offense while under any criminal justice sentence, including probation.” U.S.S.G. § 4A1.1(d). He does not dispute that a Minnesota w arrant was outstanding when he was arrested in September 2003. However, he mai ntains that the two points should not apply because (1) Minnesota had waived e xtradition on prior occasions when he was in custody, and (2) the warrant stated “Minnesota Only.” “[A]ctive supervision [of a warrant] is not require d for [the criminal history points] to apply.” U.S.S.G. § 4A1.1(d) cmt. n.4. “The plain language of [Section 4A1.1(d) and its commentary] indicates that two poi nts are to be added whenever an outstanding warrant is in existence, regardless of whether the warrant is stale pursuant to state law at the time of sentencing, an d irrespective of whether state authorities have been lax in attempting to execute the warrant.” United States v. Elmore , 108 F.3d 23, 27 (3d Cir. 1997). Thus, because th e warrant was outstanding at the time of Mr. Anchondo-Rascondo’s arrest, the district court did not err in assigning two points to his criminal his tory category.-9- III. CONCLUSION Accordingly, we AFFIRM the district court’s sentenc e.

Entered for the Court,
Robert H. Henry Circuit Judge