United States v. Cervantes-Aguilar

143 F. App'x 124

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 5, 2005
• Docket: 05-1031
• Status: Unpublished

Opinion

ORDER AND JUDGMENT **

TYMKOVICH, Circuit Judge.

Defendant Hector Cervantes-Aguilar pleaded guilty to illegal reentry after deportation in violation of 8 U.S.C. § 1326(a) and (b)(2). The district court sentenced him to 77 months’ imprisonment, the bottom of the applicable Sentencing Guidelines range. Prior to sentencing, Defendant filed a Motion to Declare Sentencing Guidelines Invalid and/or Unconstitutional and Objection to Guideline Sentencing, relying on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The district court denied the motion. Subsequently, the United States Supreme Court handed down United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

Defendant’s opening brief argues that the district court committed non-constitutional Booker error because it sentenced him under a mandatory guidelines regime. See United States v. Gonzalez-Huerta, 403 F.3d 727, 731-32 (2005). The government concedes United States v. Labastida-Segura, 396 F.3d 1140 (10th Cir.2005), requires Defendant’s case to be remanded for resentencing. We agree. Therefore, we REMAND to the district court for resentencing.

** This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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; nevertheless, an order may be cited under the terms and conditions of 10th Cir. R. 36.3.