Under plain error analysis, mandatory application of sentencing guidelines is not necessarily reversible error

SENTENCING United States v. Gonzalez-Huerta, No. 04-2045, ___ F.3d ___(10th Cir. Apr. 8, 2005)(en banc)(New Mexico). Appeal of sentence for illegal reentry to United States by deported alien in violation of 8 U.S.C. § 1326(a)-(b)(2) in which defendant claimed that district court’s mandatory application of sentencing guidelines was reversible error under Supreme Court’s holding in United States v. Booker, 125 S.Ct. 738 (2005). HELD: (1) On plain-error review, district court’s mandatory application of sentencing guidelines does not constitute reversible error under Booker where district court relied solely on defendant’s prior convictions and admitted facts in determining maximum sentence. (2) Non-constitutional Booker error (i.e., district court’s mandatory application of sentencing guidelines) is not "structural error." (3) Under plain error analysis, defendant bears burden to establish by reasonable probability based upon record that substantial rights were violated by district court’s mandatory application of sentencing guidelines. (4) Term "illegal sentence" is reserved for instance where term of incarceration exceeds statutory maximum, while wrongly imposed sentence that is under statutory maximum is properly termed "erroneous sentence." Read the opinion here.