Beng-Salazar

I. Background

In July 2004, a jury found Beng guilty of illegal reentry. At the time of his sentencing in October 2004, the Supreme Court had decided Apprendi and Blakely, but not Booker. In Apprendi, the Court held 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.” 530 U.S. at 490. In Blakely, the Court relied on Apprendi to hold that Washington State’s sentencing procedure violated the Sixth Amendment because it permitted a defendant to be sentenced above a standard sentencing range based on facts not found by UNITED STATES v. BENG-SALAZAR 7483 a jury beyond a reasonable doubt. 542 U.S. at 301-05. It was not until January 2005, however, that the Court in Booker held that “the Sixth Amendment as construed in Blakely does apply to the [federal] Sentencing Guidelines,” 543 U.S. at 226-27, and crafted the remedy of converting the mandatory federal Sentencing Guidelines into advisory guidelines, id. at 245.

Beng’s Presentence Report (“PSR”) recommended an increase in Beng’s base offense level by sixteen levels,…