F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 23, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 04-2233
v. (D. New Mexico)
JESUS PEREZ-HERNANDEZ, (D.C. No. CR-04-974-RB)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before EBEL, McKAY, and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is
therefore ordered submitted without oral argument.
On May 20, 2004, Mr. Perez-Hernandez was indicted on one count of
illegal reentry into the United States after deportation and conviction for an
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
aggravated felony, in violation of 8 U.S.C. §§ 1326(a)(1), (2), and (b)(2). On
June 8, 2004, Mr. Perez-Hernandez pleaded guilty to the indictment without a
plea agreement. On August 20, 2004, the district court sentenced Mr. Perez-
Hernandez to 57 months of imprisonment. Mr. Perez-Hernandez now appeals his
sentence, contending the district court erred in applying an enhancement for his
prior conviction for an aggravated felony. He claims that enhancements for prior
convictions must be based on facts found by a jury, as required under Blakely v.
Washington, ___ U.S. ___, 124 S. Ct. 2531 (Jun. 24, 2004) and United States v.
Booker, ___ U.S. ___, 125 S. Ct. 738 (Jan. 12, 2005). We exercise jurisdiction
pursuant to 28 U.S.C. § 1291, and affirm Mr. Perez-Hernandez’s conviction and
sentence.
I. BACKGROUND
Mr. Perez-Hernandez was arrested on Mach 29, 2004 and charged with
illegally reentering the United States after having been deported. He had been
deported to Mexico on April 21, 2001, after his convictions in Forsyth County,
Georgia for possession with intent to distribute methamphetamine and possession
with intent to distribute marijuana. He received a sentence of ten years for the
state convictions; after he served two years in prison he was placed on probation
for the remaining eight years.
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According to the presentence report, Mr. Perez-Hernandez’s base offense
level was 8, pursuant to United States Sentencing Guidelines Manual § 2L1.2(a).
The probation officer recommended that Mr. Perez-Hernandez receive a 16-level
upward adjustment pursuant to USSG §2L1.2(b)(1)(A)(ii) because he had the two
prior drug convictions in Georgia and had served a prison term of more than
thirteen months. The probation officer recommended that Mr. Perez-Hernandez
receive a three-level downward adjustment to his offense level for acceptance of
responsibility pursuant to USSG § 3E1.1. Mr. Perez-Hernandez’s adjusted
offense level was thus 21.
Mr. Perez-Hernandez was in criminal history category IV. His criminal
history category was based on three criminal history points for each prior drug
conviction and two points for having committed the instant offense while on
probation from the drug convictions. The resulting guideline range was 57 to 71
months.
Mr. Perez-Hernandez made no objection to the sentencing recommendations
in the presentence report, including the fact he was previously convicted for
distribution and possession. Similarly, at the sentencing hearing, neither Mr.
Perez-Hernandez nor his attorney objected to the factual statements in the
presentence report concerning his prior conviction. On August 20, 2004, the
district court adopted the findings of the presentence report and sentenced Mr.
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Perez-Hernandez to 57 months of imprisonment and two years of supervised
release.
II. DISCUSSION
Mr. Perez-Hernandez timely filed his appeal, and, for the first time,
challenges the continued viability of Almendarez-Torres v. United States, 523
U.S. 224, 243-44 (1998), which held that the fact of a prior conviction is an
exception to the rule that all facts which raise the maximum sentence must be
submitted to a jury and proved beyond a reasonable doubt. As a result, he
suggests Almendarez-Torres was wrongly decided, and that sentencing
enhancements made on the basis of prior convictions must be authorized by a jury
verdict or a defendant’s admission.
In addition, Mr. Perez-Hernandez suggests that because the Guidelines are
now advisory rather than mandatory, in the wake of Booker, he is entitled to a
remand for resentencing on grounds that his previous sentence was imposed in
violation of law under an unconstitutional interpretation of the Guidelines. Mr.
Perez-Hernandez contends that this error amounts to plain error.
Mr. Perez-Hernandez acknowledges that because he has neither previously
objected to the fact of his conviction nor previously raised any potential Sixth
Amendment or non-constitutional Booker violation, we review the district court’s
sentence under the plain error standard set forth in United States v. Olano, 507
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U.S. 725, 731, (1993). See also F ED . R. C RIM . P. 52(b). Under the plain error
standard, an appellant must clear several hurdles:
[T]he error must (1) be an actual error that was forfeited; (2) be plain
or obvious; and (3) affect substantial rights, in other words, in most
cases the error must be prejudicial, i.e., it must have affected the
outcome of the trial. . . . Given plain error that affects substantial
rights, an appellate court should exercise its discretion and notice
such error where it either (a) results in the conviction of one actually
innocent, or (b) seriously affects the fairness, integrity or public
reputation of judicial proceedings.
United States v. Keeling, 235 F.3d 533, 538 (10th Cir. 2000) (internal quotation
marks and citations omitted).
A. Sixth Amendment/Almendarez-Torres Claim
Although we acknowledge that Almendarez-Torres has been called into
question, it has not been overruled. In Shepard v. United States, 2005 WL
516494, *9 (U.S. Mar. 7, 2005), Justice Thomas, in a concurring opinion, noted
that:
Almendarez-Torres . . . has been eroded by this Court’s subsequent
Sixth Amendment jurisprudence, and a majority of the Court now
recognizes that Almendarez-Torres was wrongly decided. . . . The
parties do not request it here, but in an appropriate case, this Court
should consider Almendarez-Torres’ continuing viability.
Innumerable criminal defendants have been unconstitutionally
sentenced under the flawed rule of Almendarez-Torres, despite the
fundamental “imperative that the Court maintain absolute fidelity to
the protections of the individual afforded by the notice, trial by jury,
and beyond-a-reasonable-doubt requirements.” Harris v. United
States, 536 U.S. 545, 581-582, (2002) (Thomas, J., dissenting).
2005 WL 516494, *9 (U.S. Mar. 7, 2005) (Thomas, J., concurring in part).
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Despite this admonition, “as an inferior federal court we have the
responsibility to follow directly applicable Supreme Court decisions.” United
States v. Ordaz, 398 F.3d 236, 241 (3d Cir. 2005). “The holding in
Almendarez-Torres remains binding law, and nothing in Blakely or Booker holds
otherwise. Thus, because we are bound by Almendarez-Torres, we hold that the
district court’s determination regarding the facts of [Mr. Perez-Hernandez’s] prior
convictions did not violate the Sixth Amendment, notwithstanding that the
sentences were based, in part, on facts found by a judge rather than a jury.” Id.
Furthermore, the Supreme Court in Blakely unequivocally restated the
proposition announced in Apprendi, 530 U.S. at 490: “[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the
prescribed . . . maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” Blakely, 124 S. Ct. at 2536 (emphasis added); see also United
States v. Cooper, 375 F.3d 1041, 1052-53 n.3 (10th Cir.), cert. denied, 125 S. Ct.
634 (2004). Furthermore, in Booker, the Supreme Court reaffirmed the
proposition that the fact of a prior conviction is an exception to factual jury
submissions:
[W]e reaffirm our holding in Apprendi: Any fact (other than a prior
conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of guilty or a
jury verdict must be admitted by the defendant or proved to a jury
beyond a reasonable doubt.
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125 S. Ct. at 756 (emphasis added). Thus, we reject Mr. Perez-Hernandez’s
argument that the decision in Blakely prohibits enhancement of his sentence for
his prior conviction because a jury did not make a factual determination as to that
conviction. No question of fact existed for a jury to decide. As to this issue, Mr.
Perez-Hernandez cannot not show there was any error, much less plain error.
B. Non-constitutional error
Similarly Mr. Perez-Hernandez cannot establish that the sentencing court
would have reached a different sentence had it known the guidelines were
advisory and not mandatory. Although we have determined that such an error is
“plain,” under the first and second prongs of the Olano test, “the primary issue . .
. is whether Mr. [Perez-Hernandez] can satisfy both the third and fourth prongs of
plain-error review.” United States v. Gonzalez-Huerta, 2005 WL 807008, *3
(10th Cir. 2005) (en banc). To satisfy the third prong of Olano’s plain error
analysis, Mr. Perez-Hernandez retains the burden to show that his substantial
rights were affected. See id. In addition, pursuant to the fourth prong, “we will
not notice a non-constitutional error, such as the one in the case before us, unless
it is both ‘particularly egregious’ and our failure to notice the error would result
in a ‘miscarriage of justice.’” Id.
As we held in Gonzalez-Huerta, where the defendant raised a similar
challenge, here, Mr. Perez-Hernandez “fails to meet his burden to satisfy the
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fourth prong of plain-error review.” Id. at 8. In his reply brief on appeal, he
offers little more than the assertion that “absent the constrictions of the
Guidelines, the sentencing court would have been free to more fully consider Mr.
Perez-Hernandez’s circumstances and determine a reasonable sentence.” Aplt’s
Reply Br. at 3. Without more, “we cannot hold, based upon the culmination of
these factors, that the mandatory application of the Guidelines in this case–while
error–is a particularly egregious one that would result in a miscarriage of justice
or otherwise call the judiciary into disrepute unless we remanded.” Gonzalez-
Huerta, 2005 WL 807008, at *9.
III. CONCLUSION
For the reasons stated above, we AFFIRM Mr. Perez-Hernandez’s
conviction and sentence.
Entered for the Court,
Robert H. Henry
Circuit Judge
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