UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4455
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GABRIEL HERNANDEZ-FLORES, a/k/a Gabriel
Hernandez-Garcia,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (CR-04-7-FL)
Submitted: August 8, 2005 Decided: August 26, 2005
Before MICHAEL, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Gabriel Hernandez-Flores appeals his sentence imposed
after a guilty plea, without a plea agreement, for illegal reentry
by a deported alien after conviction of an aggravated felony, in
violation of 8 U.S.C. § 1326(a) & (b)(2) (2000). Finding no error,
we affirm.
Hernandez-Flores maintains that under Blakely v.
Washington, 542 U.S. 296 (2004), the district court violated his
Sixth Amendment rights by enhancing his offense level based on
facts that were neither charged in the indictment nor proven beyond
a reasonable doubt.1 Hernandez-Flores contends that the district
court’s sixteen-level increase in his offense level based upon a
prior drug trafficking conviction that resulted in a sentence
exceeding thirteen months, pursuant to U.S. Sentencing Guidelines
Manual § 2L1.2(b)(1)(A)(i) (2003), involved judicial fact finding
that violated the Sixth Amendment.2 Because Hernandez-Flores did
not raise this objection at sentencing, review is for plain error.
1
Based on this court’s then-dispositive decision in United
States v. Hammoud, 378 F.3d 426 (4th Cir.) (order), opinion issued
by 381 F.3d 316 (4th Cir. 2004) (en banc), vacated, 125 S. Ct. 1051
(2005), the Government asserted that Blakely did not apply to the
federal sentencing guidelines.
2
Hernandez-Flores acknowledges that without this enhancement
he would have still qualified for a twelve-level enhancement, as
required by USSG § 2L1.2(b)(1)(B) if the defendant has a drug
trafficking conviction resulting in a sentence of less than
thirteen months. Thus, Hernandez-Flores effectively assigns error
to the district court’s factual finding that increased his offense
level by four.
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Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725,
731-32 (1993).
Under United States v. Booker, 125 S. Ct. 738, 746, 750
(2005), the mandatory manner in which the federal sentencing
guidelines required courts to impose sentencing enhancements based
on facts found by the court by a preponderance of the evidence
violated the Sixth Amendment. In Almendarez-Torres v. United
States, 523 U.S. 224, 233-35 (1998), which remains viable after
Booker, the Supreme Court held that the government need not allege
in its indictment and need not prove beyond reasonable doubt that
a defendant had prior convictions for a district court to use those
convictions for purposes of enhancing a sentence. We find that the
application of the Almendarez-Torres prior conviction exception to
Hernandez-Flores’ sentencing was proper and does not conflict with
Shepard v. United States, 125 S. Ct. 1254, 1262 (2005) (holding
that Sixth Amendment protections apply to disputed facts “about a
prior conviction”).
In United States v. Washington, 404 F.3d 834 (4th Cir.
2005), this court applied Shepard to find that the district court’s
reliance on disputed facts outside the indictment concerning
whether Washington’s prior conviction was a “crime of violence,”
under USSG § 4B1.2(a)(2), violated the defendant’s Sixth Amendment
right to trial by jury. Unlike Washington, the district court
enhanced Hernandez-Flores’ sentence based on the term of
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imprisonment for a prior conviction, not upon extra-indictment
facts to resolve a disputed fact about the nature of the prior
conviction. Because Hernandez-Flores’ four-year sentence imposed
for his 1999 convictions is inextricably linked to the fact of
those convictions, we conclude that the district court’s
enhancement of Hernandez-Flores’ sentence based upon a prior
conviction resulting in a sentence over thirteen months is not the
type of fact found outside the indictment that is “too far removed
from the conclusive significance of a prior judicial record.”
Washington, 404 F.3d at 842.
Even if Hernandez-Flores’ sentence exceeded “the maximum
authorized by the facts established by [his] plea of guilty,” it
was nonetheless supported by facts otherwise “admitted by the
defendant.” See Booker, 125 S. Ct. at 756. Hernandez-Flores’
counsel stated at sentencing that following Hernandez-Flores’ last
conviction “he was sentenced to four years,” (JA 32), and as the
Government notes, Hernandez-Flores never disputed the accuracy of
the information in his PSR concerning his prior convictions and
sentences. Because Hernandez-Flores admitted at sentencing that a
sentence imposed following a prior drug trafficking conviction
exceeded thirteen months, we find he could not establish for this
reason alone that a Sixth Amendment error occurred.
Accordingly, we affirm Hernandez-Flores’ sentence. We
dispense with oral argument because the facts and legal contentions
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are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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