F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 11, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
No. 06-2010
v. (D.C. No. CR-05-1136-M CA)
(D .N.M .)
HERLINDO FUEN TES-RA M OS,
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before KELLY, M cKA Y, and LUCERO, Circuit Judges. **
Defendant-Appellant Herlindo Fuentes-Ramos appeals his sentence,
following a guilty plea, of a term of imprisonment of 57 months. He contends
that the statutory maximum to which the district court could legally sentence him
was 24 months, and as such, the district court erred. Our jurisdiction arises under
18 U.S.C. § 3742(a), and we affirm.
*
This order and judgment is not binding precedent, except under the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.
Background
On April 9, 2004, M r. Ramos was arrested by an United States Border
Patrol agent near Lordsburg, New M exico. After questioning by the agent, M r.
Ramos admitted that he was a M exican national who had illegally entered the
United States. A further review of his records showed that he had been deported
from the U nited States four times.
According to the Pre-Sentence Report (“PSR”), M r. Ramos’ criminal
history category was IV and his total offense level was 21. See Aplee. Supp.
App. at 7, 10. This combination rendered M r. Ramos’ United States Sentencing
Guidelines (“Guidelines”) range at 57 to 71 months. M r. Ramos objected to this
range, and requested that the district court depart downward because his criminal
history category “over-represent[ed] the seriousness of his previous conduct.” Id.
at 2. Following a sentencing hearing, the district court disagreed with M r.
Ramos’ characterization of his guideline range, and sentenced him to a term of 57
months. This appeal followed.
Discussion
On appeal, M r. Ramos contends that because the information charged him
with a violation of 8 U.S.C. § 1326(a)(1), (2), and that crime carries a maximum
penalty of 24 months, the district court erred in sentencing him to a 57 month
term of imprisonment. As M r. Ramos failed to raise this issue before the district
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court, our review is for plain error. United States v. Visinaiz, 428 F.3d 1300,
1308 (10th Cir. 2005). Thus, M r. Ramos must demonstrate that the sentence
contains (1) error, (2) that is plain, and (3) that the error affects substantial rights.
Id. If this is shown, we may exercise discretion to correct the error only if it
“seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (internal quotations omitted); see also United States v. Lott,
310 F.3d 1231, 1241-42 (10th Cir. 2002).
As mentioned above, M r. Ramos argues that he could only be sentenced to
a 24 month term of imprisonment because the information charges him with a
violation of 8 U.S.C. § 1326(a). The government disagrees, contending that
because M r. Ramos qualified under § 1326(b)(2) as one who was removed
following an aggravated felony, he could be imprisoned to a maximum of 240
months, as that subsection indicates. M r. Ramos’ argument is without merit.
W hile it is quite true that the charging document (whether an information
or an indictment) must set forth each element of the crime that it charges, it “need
not set forth factors relevant only to the sentencing of an offender found guilty of
the charged crime.” Almendarez-Torres v. United States, 523 U.S. 224, 228
(1998). As the Supreme Court has instructed, and the government contends here,
it is clear that § 1326(b)(2), the statutory provision of import here, sets forth “a
sentencing factor . . . and not a separate criminal offense.” Id. at 235.
Accordingly, as it does not set forth a separate crime, “neither the statute nor the
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Constitution” requires the government to include that M r. Ramos was going to be
sentenced in accordance with § 1326(b)(2) in the information. Id. at 226-27. 1
There is no error here, plain or otherwise.
AFFIRM ED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
1
The government asserts that it is “undisputed” that the M agistrate Judge
informed M r. Ramos that the maximum penalty was imprisonment for two years,
apparently at the plea colloquy. Aplee. Br. at 7, n.12. Nevertheless, as the
government also points out, this does not constitute plain error. See United States
v. Dixon, 308 F.3d 229, 235 (3d Cir. 2000) (holding that a Rule 11 error did not
satisfy plain error review because the defendant “never clearly and unmistakably
asserted that had he been correctly informed of the sentence he would, in fact,
have pled not guilty and gone to trial”) (emphasis in original).
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