F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 11, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
No. 05-2217
v. (D.C. No. CR-03-1746)
(D .N.M .)
O RLA N DO JO SE G A RC IA ,
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before KELLY, M cKA Y, and LUCERO, Circuit Judges. **
Defendant-Appellant Orlando Jose Garcia pled guilty to being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). H e
was sentenced to 180 months imprisonment under the Armed Career Criminal
provisions in 18 U.S.C. § 924(e) (“Armed Career Criminal Act” or “ACCA”) and
U.S.S.G § 4B1.4. On appeal, he argues that the district court erred in imposing
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
his sentence because (1) the maximum sentence for the crimes he pled guilty to
was ten years, (2) he was not indicted for a violation of § 924(e), (3) the
government’s notice of intent to seek an enhancement was defective, (4) the
government’s list of his prior convictions was different than that of the probation
department (resulting in two sets of prior convictions), and (5) the judgment does
not refer to the ACCA. Our jurisdiction arises under 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a), and we affirm.
Background
The parties are familiar with the facts leading to M r. Garcia’s arrest, and
we repeat here only those necessary to our disposition. During a traffic stop of a
vehicle in which M r. Garcia w as a passenger, officers recovered a loaded Smith
and W esson .357 revolver. A federal grand jury indicted him on three counts of
being a felon in possession of a firearm and ammunition. M r. Garcia pled guilty
to one count with a maximum penalty of ten years, but fifteen years if he was
determ ined to be an armed career criminal. Doc. 24 at 2, ¶ 4(a), at 3, ¶ 6(d). H e
was so advised, and reserved his right to appeal any sentence imposed under the
ACCA. V R. at 8-9, 11-12; Doc. 24 at 3, ¶ 6(d). The government filed a notice
of its intention to seek an enhanced sentence pursuant to the ACCA, but
mistakenly cited 18 U.S.C. § 924(c), rather than § 924(e).
The Pre-Sentence Report (“PSR”) determined that M r. Garcia was an armed
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career criminal under 18 U.S.C. § 924(e), based on past convictions for
residential burglary, aggravated burglary and escape from jail. M r. Garcia
objected to the PSR under United States v. Booker, 543 U.S. 220 (2005) and
Blakely v. W ashington, 542 U.S. 296 (2004), arguing against a Guidelines
sentence under the ACCA. He also took issue with the felonies relied upon and
argued that some of the violent felonies were not sufficiently distinguished from
one another to be separate. He further objected to not being charged under
§ 924(e) by indictment, and to the government’s notice which mistakenly
identified § 924(c), rather than § 924(e). The district court determined that M r.
Garcia was an armed career criminal based on five prior convictions, 1 I R. Doc.
41 at 1-2; IV R. 9-10, and enhanced his sentence accordingly.
Discussion
W e review a sentencing enhancement under the ACCA de novo. United
States v. M oore, 401 F.3d 1220, 1224 (10th Cir. 2005). As M r. Garcia concedes,
this court has held post-Booker that the existence and classification of prior
1
The ACCA mandates that a defendant who violates 18 U.S.C. § 922(g)
and has “three previous convictions by any court referred to in section 922(g)(1)
of this title for a violent felony . . . shall be . . . imprisoned not less than fifteen
years.” 18 U.S.C. § 924(e)(1). Section 4B1.4 of the Sentencing Guidelines defines
those subject to enhancement under the ACCA as “armed career criminal[s]” and
likew ise provides for an enhanced sentencing offense level and criminal history
category. The three prior convictions must arise from separate criminal
transactions. United States v. M ichel, 446 F.3d 1122, 1133-35 (10th Cir. 2005).
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convictions used to enhance a defendant's sentence need not be charged in the
indictment and submitted to a jury. See id. (“[W]e are bound by existing
precedent to hold that the Almendarez-Torres exception to the rule announced in
Apprendi and extended to the Guidelines in Booker remains good law. . . . W e
therefore conclude that the government need not charge the ‘fact’ of a prior
conviction in an indictment and submit it to a jury.”); United States v. Small, 423
F.3d 1164, 1188 (10th Cir. 2005) (holding that the district court’s career offender
findings under § 4B1.1 did not implicate the Sixth Amendment, and that “whether
the present offense and prior offenses constitute felonies that are crimes of
violence or controlled substance offenses are questions of law unaffected by the
Supreme Court’s holding in Booker ”). W e have adhered to this position. United
States v. M ichel, 446 F.3d 1122, 1132-33 (10th Cir. 2006). Accordingly, we
reject M r. Garcia’s arguments premised on a need to indict him under § 924(e)
and specify the pertinent felonies.
M r. Garcia’s argument that he received insufficient notice about the
ACCA enhancement is also unpersuasive. Procedural due process requires only
reasonable notice of, and an opportunity to be heard, concerning the prior
convictions. See Oyler v. Boles, 368 U.S. 448, 452 (1962) (“Nevertheless, a
defendant must receive reasonable notice and an opportunity to be heard relative
to the recidivist charge even if due process does not require that notice be given
prior to the trial on the substantive offense.”); cf. United States v. Gregg, 803
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F.2d 568, 570 (10th Cir.1986) (noting that ACCA does “not prescribe any specific
method of alleging . . . prior convictions” in pursuit of enhancement).
Here, M r. Garcia’s received actual notice of the possibility of an ACCA
enhancement in a reasonable time, and he had an opportunity to be heard
concerning that status. See III R. at 12 (government represents it provided notice
prior to the plea); Doc. 24 at 2-3 (plea agreement); V R. at 8-9 (M r. Garcia
informed at change of plea hearing); II R. ¶ 26 (PSR ); III R. at 16 (sentencing
hearing). M oreover, the addendum to the PSR’s failure to include one of M r.
Garcia’s five prior convictions did not render notice inadequate. The addendum
and the court’s order contained at least three of the same qualifying convictions
and M r. Garcia had more than enough time between his receipt of the PSR and the
sentencing hearing to make the appropriate objections. M r. Garcia does not
explain how any of these convictions would not qualify under the current state of
the law. See United States v. Harris, 447 F.3d 1300, 1302-06 (10th Cir. 2006).
Finally, the district court’s failure to include a reference to the ACCA in its final
judgment does not render the judgment illegal. The judgment pronounced the
sentence imposed. W e can find no requirement that a judgment reflect any
applied enhancements.
AFFIRM ED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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