Gutierrez-Barreda

MEMORANDUM ***

Ernesto Gutierrez-Barreda was convicted after pleading guilty to illegally entering the United States from Mexico after a previous deportation in violation of 8 U.S.C. § 1326 (count 1) and escaping from the custody of law enforcement officials in violation of 18 U.S.C. § 751 (count 2). Gutierrez-Barreda appeals from the district court’s judgment and sentence. We affirm the conviction and remand the case to the district court, to determine whether the sentence would have been different under an advisory sentencing guidelines regime.

We consider Gutierrez-Barreda’s assertions of error briefly in turn.

First, Gutierrez-Barreda challenges his sentence. He was sentenced under the Federal Sentencing Guidelines, the district court then considering itself bound by the Guidelines. Gutierrez-Barreda’s sentence was increased under the Guidelines because of his prior convictions, which he did not admit and which were not proved to a jury. Gutierrez-Barreda argues that this was unconstitutional, under Blakely v. Washington, — U.S. -, 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004). That argument, however, has since been overtaken by United States v. Booker, — U.S. -, 125 S.Ct. 738 ,…