F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          December 16, 2005
                                   TENTH CIRCUIT
                                                                             Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                        No. 04-4184
                                                            (D. Utah)
 ALEJANDRO FELIX-SALAZAR, also                      (D.Ct. No. 04-CR-123-DB)
 known as Jesus Apodaca-Castro,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.



      After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Alejandro Felix-Salazar pled guilty to one count of illegal re-entry after



      *
         This order and judgment is not binding precedent except under the doctrines of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.
deportation subsequent to a conviction for an aggravated felony, in violation of 8

U.S.C. § 1326(a) and (b)(2). At sentencing, he argued that the Supreme Court's

decision in Blakely v. Washington, 

, 

(2004), required

the district court to hold the United States Sentencing Guidelines

unconstitutional. The district court held that the guidelines were constitutional,

and pursuant to a plea agreement, sentenced Felix-Salazar to thirty months in

prison, the minimum sentence within the applicable guidelines range. The district

court also imposed an alternate sentence of thirty months “not being bound by the

guidelines.” (R. Vol. III at 4.) On appeal, Felix-Salazar requests resentencing in

light of the Supreme Court's decision in United States v. Booker, 

,

(2005), and this Court's decision in United States v.

Labastida-Segura, 

(10th Cir. 2005). We affirm.

Discussion

      In Booker, the Supreme Court held that “[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 

. To remedy the Sixth Amendment difficulties within the sentencing

guidelines, the Court invalidated the mandatory application of the guidelines and

instead required district courts to consult them in an advisory fashion. 

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(excising 18 U.S.C. §§ 3553(b)(1), 3742(e)). While Felix-Salazar does not allege

a Sixth Amendment violation here, there is a non-constitutional Booker error

because the district court treated the guidelines as mandatory rather than advisory

when imposing the first sentence. See United States v. Gonzalez-Huerta, 

, 731-32 (10th Cir.) (discussing the difference between constitutional and

non-constitutional Booker error), cert. denied, 

(2005). “In

non-constitutional harmless error cases, such as this, the government bears the

burden of demonstrating, by a preponderance of the evidence, that [the

defendant’s] substantial rights were not affected.” United States v. Martinez, 

, 1135-36 (10th Cir.), cert. denied, ___ S.Ct. ___, 2005 WL3067739

(2005). See United States v. Glover, 

, 1210-11 (10th Cir. 2005).

      Felix-Salazar contends his situation is identical to the defendant’s in

Labastida-Segura. There, the defendant was convicted of roughly the same

offense as Felix-Salazar, unlawful re-entry of a previously deported alien in

violation of 8 U.S.C. § 1326. 

.

Labastida-Segura challenged the constitutionality of the guidelines at sentencing

and was overruled by the district judge, who found the guidelines to be

constitutional. 

As in this case, the district court in Labastida-Segura

imposed the minimum sentence under the applicable guidelines range. 

the district court’s mandatory guideline sentence was not harmless


                                         -3-
error stating:

      Here, where [the sentence imposed] was already at the bottom of the
      guidelines range, to say that the district court would have imposed
      the same sentence given the new legal landscape (even after
      consulting the Sentencing Guidelines in an advisory capacity) places
      us in the zone of speculation and conjecture--we simply do not know
      what the district court would have done after hearing from the
      parties. Though an appellate court may judge whether a district court
      exercised its discretion (and whether it abused that discretion), it
      cannot exercise the district court's discretion.

      However, in this case we are not left “in the zone of speculation and

conjecture” in determining what the district court would do if the guidelines were

not mandatory. 

court’s alternative sentence, which did not treat

the guidelines as mandatory, is exactly the same sentence it imposed under the

guidelines. The district court clearly explained how and why it chose to exercise

its discretion in selecting an alternate sentence:

             As an alternative sentence I impose a sentence of an identical
      30 months. In doing so I am not bound at all by the guidelines. I do
      find that some of the criminal history factors extremely influential in
      my reaching a 30 month sentence as a non-guideline sentence. And
      the fact that the defendant has engaged in drug trafficking activity in
      the United States on at least two occasions, for which there are
      convictions, has a substantial effect on the Court in imposing an
      alternate sentence that is not at all effected by or required by any
      guidelines requirement.

(R. Vol. III at 6-7.) Felix-Salazar claims the district court’s alternative sentence

is insufficient to establish harmless error because it did not consider all the

sentencing factors enumerated within 18 U.S.C. § 3553(a) and, therefore, this

                                          -4-
Court can only speculate as to what sentence the district court would have

imposed had it done so. We disagree.

      The district court heard argument regarding the mitigating reasons for

Felix-Salazar’s re-entry and the innocuous circumstances of his arrest.

Nonetheless, the district court weighed those factors against his criminal history

in drug trafficking and responded with an appropriate sentence. This is precisely

the process suggested by Booker. “[N]otwithstanding Booker's invalidation of the

mandatory nature of the sentencing guidelines, district courts must still consult

the Guidelines and take them into account when sentencing. Thus, appellate

review continues to encompass review of the district court's interpretation and

application of the Guidelines.” United States v. Graham, 

, 1218

(10th Cir.) (internal quotation marks and citation omitted), cert. denied, 

(2005). Here, as in United States v. Serrano-Dominguez, “[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

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

needlessly burden the district court and counsel with another sentencing

proceeding, which we know would produce the same result.” 

,

1224 (10th Cir. 2005).

      AFFIRM.


                                         -5-
Entered by the Court:

Terrence L. O’Brien
United States Circuit Judge




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