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  • United States v. Briceno-Rosado, 10th Cir. (2005)

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    This document summarizes a court case involving Miguel Briceno-Rosado appealing his 77-month prison sentence for illegal reentry by a previously deported alien. The court document discusses: 1) Briceno-Rosado's guilty plea and criminal history; 2) how he argued his sentence was unconstitutional under Blakely v. Washington; 3) the Supreme Court's ruling in United States v. Booker that rendered the Federal Sentencing Guidelines advisory rather than mandatory; and 4) how the court is remanding Briceno-Rosado's case for resentencing in light of Booker, as they cannot determine if the district court would have imposed the same sentence had they known the Guidelines were not mandatory.

    Original Description:

    Filed: 2005-02-18 Precedential Status: Non-Precedential Docket: 04-1345

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    This document summarizes a court case involving Miguel Briceno-Rosado appealing his 77-month prison sentence for illegal reentry by a previously deported alien. The court document discusses: 1) Briceno-Rosado's guilty plea and criminal history; 2) how he argued his sentence was unconstitutional under Blakely v. Washington; 3) the Supreme Court's ruling in United States v. Booker that rendered the Federal Sentencing Guidelines advisory rather than mandatory; and 4) how the court is remanding Briceno-Rosado's case for resentencing in light of Booker, as they cannot determine if the district court would have imposed the same sentence had they known the Guidelines were not mandatory.

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    29 views6 pages

    United States v. Briceno-Rosado, 10th Cir. (2005)

    Uploaded by

    Scribd Government Docs
    This document summarizes a court case involving Miguel Briceno-Rosado appealing his 77-month prison sentence for illegal reentry by a previously deported alien. The court document discusses: 1) Briceno-Rosado's guilty plea and criminal history; 2) how he argued his sentence was unconstitutional under Blakely v. Washington; 3) the Supreme Court's ruling in United States v. Booker that rendered the Federal Sentencing Guidelines advisory rather than mandatory; and 4) how the court is remanding Briceno-Rosado's case for resentencing in light of Booker, as they cannot determine if the district court would have imposed the same sentence had they known the Guidelines were not mandatory.

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    of 6

    F I L E D

    UNITED STATES COURT OF APPEALS

    United States Court of Appeals


    Tenth Circuit

    TENTH CIRCUIT

    FEB 18 2005

    PATRICK FISHER
    Clerk

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,

    No. 04-1345

    v.

    (D. Colorado)

    MIGUEL ANGEL BRICENOROSADO,

    (D.C. No. 03-CR-553-D)

    Defendant - Appellant.
    ORDER AND JUDGMENT

    Before TACHA, Chief Judge, ANDERSON , and BALDOCK , Circuit Judges.

    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist in the determination
    of this appeal.

    See Fed. R. App. P. 34(a)(2); 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, 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.
    *

    Miguel Briceno-Rosado (Briceno-Rosado) pleaded guilty to illegal


    reentry into the United States by a previously deported alien, in violation of 8
    U.S.C. 1326. He appeals his seventy-seven-month sentence. We REMAND for
    resentencing.
    On November 17, 2003, Briceno-Rosado was charged in a one-count
    indictment alleging that he was found in the United States on September 15, 2003,
    without first gaining the permission of the Attorney General, after being
    previously deported for an aggravated felony conviction.

    Briceno-Rosado

    entered into a plea agreement with the government admitting the conduct charged
    in the indictment. In return, the government agreed to recommend a three-level
    decrease in his offense level, based on his acceptance of responsibility, and
    agreed to recommend a sentence at the bottom of the range mandated by the
    United States Sentencing Commission,

    Guidelines Manual (Guidelines).

    The Presentence Report (PSR) concluded that the defendants offense


    level was 21 and that his criminal history category was IV. The PSR
    recommended a sentence of seventy-seven months, the bottom of the applicable
    Guidelines range. Briceno-Rosado did not challenge the findings in the PSR at
    sentencing.

    Briceno-Rosado was previously convicted of unlawful sexual intercourse


    with a minor.
    1

    -2-

    Prior to sentencing, however, the defendant filed a motion asking the


    district court to declare the Guidelines unconstitutional in light of
    Washington , 124 S. Ct. 2531 (2004).

    Blakely v.

    At Briceno-Rosados initial sentencing

    hearing on July 12, 2004, the district court determined that more analysis of the
    question was needed and ordered supplemental briefing. On August 2, 2004, the
    district judge issued a written order denying the defendants motion and
    concluding that Blakely was not implicated because sentencing Briceno-Rosado
    did not require him to engage in judicial fact-finding. On August 20, 2004, the
    defendant was sentenced to seventy-seven months in prison, followed by three
    years of supervised release. He now appeals, again arguing that the Guidelines
    are unconstitutional in their entirety, thereby necessitating resentencing.

    When Briceno-Rosado raised Blakely both to the district court and to this
    court, the Supreme Court had not yet issued United States v. Booker, 125 S. Ct.
    738 (2005). However, raising Blakely is sufficient to raise an argument under
    Booker. Accordingly, he has preserved an argument under both cases before the
    district court and before us, and we hereinafter refer to both cases. We granted
    both parties permission to file supplemental briefs on the effect of Booker,
    although the government elected not to file one.
    2

    Specifically, Briceno-Rosado contends that (1) Blakely applies to the


    Guidelines; (2) the unconstitutional provisions of the Guidelines cannot be
    severed; and (3) the activities of the Sentencing Commission in defining new
    crimes through enhancements violate non-delegation and separation-of-powers
    principles. United States v. Booker, 125 S. Ct. 738 (2005), of course, applied
    Blakely to the Guidelines. Briceno-Rosados remaining arguments, however, are
    now foreclosed by Booker. Id. at 756 (provisions of the federal sentencing statute
    that make Guidelines mandatory severed and excised); id. at 754-55 (holding that
    Mistretta v. United States, 488 U.S. 361 (1989), which upheld the delegation of
    (continued...)
    3

    -3-

    In Blakely , the Supreme Court reiterated the holding of

    Apprendi v. New

    Jersey , 530 U.S. 466 (2000), that [o]ther than the fact of a prior conviction, any
    fact that increases the penalty for a crime beyond the prescribed statutory
    maximum must be submitted to a jury, and proved beyond a reasonable doubt.
    Blakely , 124 S. Ct. at 2536 (quoting

    Apprendi , 530 U.S. at 490). In applying this

    holding to Washington states determinate sentencing scheme,

    Blakely clarified

    that the statutory maximum is not the maximum sentence a judge may impose
    after finding additional facts, but the maximum he may impose
    additional findings.

    without any

    Id. at 2537. Recently, Booker applied Blakely to the federal

    sentencing guidelines, rendering them advisory rather than mandatory.

    Booker

    held that the Sixth Amendment requires 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 must be admitted by the
    defendant or proved to a jury beyond a reasonable doubt.

    Booker , 125 S. Ct. at

    756. Because Briceno-Rosado admitted all relevant sentencing facts, no Sixth


    Amendment violation occurred in this case.
    That does not end our inquiry, however. In

    Booker , the Supreme Court also

    imposed a global remedy for the Sixth Amendment difficulties with the

    (...continued)
    authority to the Sentencing Commission, was still valid).
    3

    -4-

    Sentencing Guidelines, invalidating their mandatory application and instead


    requiring district courts to consult them in an advisory fashion.

    United States v.

    Labastida-Segura , No. 04-1311, __ F.3d __, 2005 WL 273315, at *1 (10th Cir.


    Feb. 4, 2005). In Labastida-Segura , which is nearly identical to this case, we held
    that we must apply this remedial holding to the defendants sentence even though
    no Sixth Amendment violation was involved.

    Id. at *2. We also determined that

    while sentencing errors are harmless in some circumstances, the district courts
    error of sentencing Labastida-Segura while believing the Guidelines were
    mandatory was not harmless:
    Here, where it 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 conjecturewe simply do no 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 courts discretion.
    Id. Like Labastida-Segura, Briceno-Rosado was sentenced at the bottom of the
    sentencing range, and we likewise have no way to determine if the district judge
    would have imposed the seventy-seven-month sentence in light of

    -5-

    Booker . In

    fact, we discern no material difference between this case and

    Labastida-Segura . 4

    Accordingly, we REMAND this case for resentencing.


    ENTERED FOR THE COURT
    Stephen H. Anderson
    Circuit Judge

    The government has submitted a letter indicating its agreement that, in


    light of Labastida-Segura, this case must be remanded.
    4

    -6-

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