UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4329
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ORLANDO EUCEDA VALLE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-03-354)
Submitted: August 10, 2005 Decided: August 30, 2005
Before NIEMEYER, WILLIAMS, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Paul A. Weinman, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Orlando Euceda Valle was indicted on September 29, 2003,
in a seven-count indictment charging drug, firearm, and
counterfeiting offenses. He pled guilty, pursuant to a plea
agreement, to three counts of the indictment: Count One, dealing
in $2800 in counterfeit bills, in violation of 18 U.S.C.A. § 473
(West Supp. 2005); Count Four, distribution of eighty-three grams
of cocaine hydrochloride, in violation of 21 U.S.C.A. § 841(a)(1),
(b)(1)(C) (West 1999 & Supp. 2005); and Count Seven, carrying a
firearm while possessing with intent to distribute 300 grams of
cocaine hydrochloride, in violation of 18 U.S.C. § 924(c)(1)(A)
(2000).
In the presentence report, the probation officer
calculated a base offense level of twenty-four pursuant to U.S.
Sentencing Guidelines Manual § 2D1.1(c)(8) (2003). A three-level
adjustment for acceptance of responsibility, under USSG § 3E1.1,
resulted in a total offense level of twenty-one. The probation
officer found a total of twelve criminal history points, yielding
a criminal history category of V. The resulting sentencing range
was seventy to eighty-seven months. USSG Ch. 5, Pt. A (Sentencing
Table). Count Seven had a mandatory minimum consecutive sentence
of five years. 18 U.S.C. § 924(c)(1)(A)(i); USSG § 2K2.4(a). No
objections were made concerning the sentence computation.
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The district court sentenced Valle to seventy months on
Count One, with a concurrent sentence of seventy months on Count
Four, and a consecutive sixty month sentence on Count Seven. He
imposed concurrent three-year periods of supervised release on each
count. The district court directed that Valle be released to an
immigration detainer at the completion of the custodial sentence.
Valle appeals.
Citing Blakely v. Washington, 542 U.S. 296 (2004), Valle
asserts that his sentence is unconstitutional because it was based
on a fact, i.e., drug quantity, not alleged in the indictment,
found by a jury beyond a reasonable doubt, or admitted by
defendant. Valle did not raise the issue in the district court.
Consequently, the claim is reviewed for plain error. Fed. R. Crim.
P. 52(b); United States v. Hughes, 401 F.3d 540, 547 (4th Cir.
2005).
To meet the plain error standard: (1) there must be an
error; (2) the error must be plain; and (3) the error must affect
substantial rights. United States v. Olano, 507 U.S. 725, 732-34
(1993). If the three elements of the plain error standard are met,
we may exercise our discretion to notice error only “when failure
to do so would result in a miscarriage of justice, such as when the
defendant is actually innocent or the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.”
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Hughes, 401 F.3d at 555 (internal quotation marks and citation
omitted).
In United States v. Booker, 125 S. Ct. 738 (2005), the
Supreme Court held that 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. Id. at 746, 750
(Stevens, J., opinion of the Court). The Court remedied the
constitutional violation by severing two statutory provisions, 18
U.S.C.A. § 3553(b)(1) (West Supp. 2005) (requiring sentencing
courts to impose a sentence within the applicable guideline range),
and 18 U.S.C.A. § 3742(e) (West 2000 & Supp. 2005) (setting forth
appellate standards of review for guideline issues), thereby making
the guidelines advisory. Hughes, 401 F.3d at 546 (citing Booker,
125 S. Ct. at 756-67 (Breyer, J., opinion of the Court)).
After Booker, courts must calculate the appropriate
guideline range, consider the range in conjunction with other
relevant factors under the guidelines and 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2005), and impose a sentence. If a sentence
outside the guideline range is imposed, the district court must
state its reasons for doing so. Hughes, 401 F.3d at 546. This
remedial scheme applies to any sentence imposed under the mandatory
guidelines, regardless of whether the sentence violates the Sixth
Amendment. Id. at 547 (citing Booker, 125 S. Ct. at 769 (Breyer,
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J., opinion of the Court)). However, as Valle raised no claim
based on the mandatory nature of the guidelines, this issue is not
before us.
Valle claims that the district court violated the
constitution at sentencing by attributing to him a drug quantity
greater than that charged in Count Four of the indictment. While
Count Four charged Valle with possession of eighty-three grams, the
total amount referred to in all seven counts, and considered by the
probation officer and district court as relevant conduct, was 434
grams.
However, we find that no Sixth Amendment violation
occurred here. “To establish that a Sixth Amendment error occurred
in his sentencing, [the defendant] must show that the district
court imposed a sentence exceeding the maximum allowed based only
on the facts that he admitted.” United States v. Evans, __ F.3d
__, __, 2005 WL 1705531, at *1 (4th Cir. July 22, 2005). In
pleading guilty Valle clearly admitted that he distributed eighty-
three grams of cocaine on one occasion and that he possessed with
intent to distribute 300 grams on another occasion while carrying
a firearm. Therefore, the 300 grams cited in Count Seven, the
firearms count, can properly be considered as relevant conduct in
computing the guideline range. USSG § 1B1.3, comment. (n.2).
Doing so results in a base offense level of twenty-two, USSG
§ 2D1.1(c)(9), with a sentencing range of seventy-seven to ninety-
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six months.* The seventy-month sentence Valle actually received is
lower than this applicable guideline range. As the district
court’s sentence can be reached only on considering facts admitted
by Valle, he has suffered no Sixth Amendment violation and this
claim lacks merit. See Blakely v. Washington, 542 U.S. 296, __,
124 S. Ct. 2531, 2537 (2004) (“[T]he statutory maximum . . . is the
maximum sentence a judge may impose solely on the basis of the
facts reflected in the jury verdict or admitted by the defendant.”)
Valle also asserts that his criminal history category is
unconstitutional in that it increases his punishment based on
uncharged facts not found by a jury or admitted by him. He argues
that the criminal history computation generally is based on more
than the mere fact of prior convictions, as only certain types of
convictions are countable, and facts such as sentence length, time
frame, and relatedness must be determined under certain guidelines
provisions. Again, this alleged error was not preserved before the
district court, and we review for plain error. Olano, 507 U.S. at
731-32.
In Almendarez-Torres v. United States, 523 U.S. 224
(1996), the Supreme Court held that the government need not allege
*
As in Evans, for purposes of determining whether a Sixth
Amendment violation occurred, the sentence imposed on Valle is
compared against the guideline range that was properly determined
before that range was adjusted to account for the three-point
reduction in offense level Valle received for acceptance of
responsibility.
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in its indictment or prove beyond reasonable doubt that a defendant
had prior convictions for a district court to use those convictions
for purposes of enhancing a sentence. In Apprendi v. New Jersey,
530 U.S. 466, 490 (2005), the Supreme 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 minimum must be
submitted to a jury, and proved beyond a reasonable doubt.”
Apprendi did not overrule Almendarez-Torres, and the Court recently
reaffirmed its holding in Apprendi. See Booker, 125 S. Ct. at 756.
Therefore, we conclude that the district court did not err in
considering Valle’s prior convictions to calculate his criminal
history.
Because Valle has shown no Sixth Amendment error in the
calculation of his criminal history points or his sentence, we
affirm the conviction as well as the sentence imposed by the
district court. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED
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