To establish plain error, Mata must demonstrate there is (1) error, (2) that is plain and (3) the error affects her substantial rights. United States v. Dazey, 403 F.3d 1147, 1174 (10th Cir.2005); Gonzalez-Huerta, 403 F.3d at 732. If these three prongs are met, we may exercise our discretion to correct the error if Mata establishes “the error seriously affects the fairness, integrity, or public reputation of judicial proceed ings,” i.e. the fourth prong of plain error review. Dazey, 403 F.3d at 1174; see also Gonzalez-Huerta, 403 F.3d at 736-37. The first two prongs of the plain error standard have been met — there was error and the error was plain. Gonzalez-Huerta, 403 F.3d at 732. However, contrary to Mata’s arguments, the error was “non-constitutional Booker error.” Id. at 731-32 (<HOLDING>). Mata admitted at her change of plea hearing
holding that this court reviews a booker issue de novo where the defendant objected in the district court to sentence enhancements based on facts not found by a jury nor admitted by the defendant holding nonconstitutional booker error occurs when the district court applies the guidelines in a mandatory rather than advisory fashion even though the resulting sentence was calculated based solely upon facts admitted by the defendant or found by a jury holding that even without booker constitutional error in the district courts application of the guidelines there could be nonconstitutional error where the court applied the guidelines in a mandatory fashion holding that where the defendants sentence does not exceed the statutory maximum and the district court applies the guidelines as advisory the district court does not err by enhancing the defendants sentence based on facts not charged in the indictment or admitted by him holding that even in the absence of a sixth amendment violation the imposition of a sentence under the former mandatory guidelines regime rather than under the advisory regime outlined in booker is plain error