United States Court of Appeals
For the First Circuit
No. 13-1980
UNITED STATES OF AMERICA,
Appellee,
v.
MAURO EDULIO JIMÉNEZ-BANEGAS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, U.S. District Judge]
Before
Lynch, Torruella, and Barron,
Circuit Judges.
Sharon Fray-Witzer, on brief for appellant.
Renée M. Bunker, Assistant United States Attorney, and
Thomas E. Delahanty II, United States Attorney, on brief for
appellee.
June 24, 2015
TORRUELLA, Circuit Judge. Defendant, Mauro Edulio
Jiménez-Banegas ("Jiménez"), pleaded guilty to illegal reentry into
the United States pursuant to 8 U.S.C. § 1326. At sentencing, the
district court determined that the applicable statutory maximum
imprisonment sentence was twenty years under 8 U.S.C. § 1326(b)(2)
because Jiménez had illegally reentered the United States
subsequent to deportation after a conviction for an aggravated
felony. The district court also enhanced Jiménez's Guidelines
sentencing range ("GSR") pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii)
upon determining that Jiménez had been previously deported or
unlawfully remained in the United States after a conviction for a
felony that is a crime of violence. Ultimately, the court
sentenced him to fifty-seven months of imprisonment. Jiménez
challenges his sentence, arguing that the fact of his prior
conviction for an aggravated felony had to be alleged in the
indictment and proven beyond a reasonable doubt in order for him to
be sentenced to a term greater than the two-year statutory maximum
established in 8 U.S.C. § 1326(a). Finding that Jiménez's argument
is foreclosed by binding Supreme Court precedent, we affirm his
sentence.
I. Facts
Because Jiménez pleaded guilty, our discussion of the
facts is drawn from the change-of-plea colloquy, the Presentence
Investigation Report ("PSR"), and the transcript of the sentencing
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hearing. See United States v. Cintrón-Echautegui, 604 F.3d 1, 2
(1st Cir. 2010).
This case is the result of Jiménez's -- a Honduran
citizen -- repeated attempts to illegally enter and remain in this
country, in violation of our immigration laws. He was first found
to have illegally entered the United States in 1989, and was
deported. Determined to live here, Jiménez illegally reentered the
United States.
During his illegal stays in the United States, Jiménez
also had brushes with the law in areas other than immigration. As
a result, he was arrested in 2003 and, in 2004, he pleaded guilty
to unlawful entry into a woman's house and attempted third degree
sexual abuse in the Washington D.C., Superior Court. Case No. F-
01729-03. He was sentenced to ninety days incarceration for the
unlawful entry and eighteen months incarceration for attempted
third degree sexual abuse.1 Upon his release from custody in
September 2004, Jiménez was again deported to Honduras.
In January 2005, Jiménez was again found in the United
States and was arrested. He pleaded guilty to illegal reentry
subsequent to an aggravated felony conviction -- the attempted
1
In 2004, while Jiménez was in custody in relation to Case No. F-
01729-03, the United States Immigration and Customs Enforcement
learned that Jiménez had illegally reentered the United States.
For this offense, he was convicted and sentenced to time served, to
be served concurrently to the sentence imposed in Case No. F-01729-
03, followed by one year of supervised release and deportation.
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third degree sexual abuse -- in violation of 8 U.S.C. § 1326. The
district court applied a sixteen-level enhancement to his base
offense level, pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii), based on
his prior conviction for a crime of violence -- the attempted third
degree sexual abuse. He was ultimately sentenced to forty-six
months of imprisonment, followed by three years of supervised
release, and deportation. Jiménez appealed the district court's
enhancement of his GSR and its determination that his prior
conviction for attempted third degree sexual abuse was a crime of
violence. The Fifth Circuit affirmed his sentence. United States
v. Jiménez-Banegas, 209 F. App'x 384 (5th Cir. 2006).
On July 30, 2012, and pertinent to this appeal, Jiménez
was once again found in the United States. He was arrested by
United States Border Patrol Agents in Maine2 and charged with
violating 8 U.S.C. §§ 1326(a) and (b)(2) because he was found in
the United States without authorization after having been removed
from the United States "subsequent to a conviction for an
aggravated felony" as described in 8 U.S.C. § 1101(a)(43). During
Jiménez's initial appearance, the court advised him that "[t]his is
an offense that has a potential penalty of up to 20 years[']
2
Jiménez and another man, José Reina, were stopped for being in
a vehicle which had no visible license plate. When stopped, both
men produced Honduran identification, and Jiménez provided a false
name. The United States Border Patrol conducted a record check
using Jiménez's fingerprints, which revealed his true identity and
that he had been previously removed from the United States on
multiple occasions.
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imprisonment." Jiménez was asked if he understood the charges
against him and the potential penalties, to which he replied in the
affirmative.
On August 16, 2012, a one-count indictment was filed.
The indictment caption cited 8 U.S.C. §§ 1326(a) and (b)(2) as the
relevant statutory provisions, recounted Jiménez's three prior
deportations from the United States, and stated that he had
violated "Title 8, United States Code, Sections 1326(a) and
(b)(2)." It, however, did not specifically mention that any of
Jiménez's prior deportations occurred after a conviction for an
aggravated felony.
On November 20, 2012, at the change of plea hearing, the
district court advised Jiménez that "by pleading guilty to this
crime," he was "subject to being placed in jail for a period not to
exceed twenty years," that he was "subject to being placed on
supervised release for a period not to exceed three years," and
that he could be deported. Asked if he understood, Jiménez
responded in the affirmative. Jiménez then entered a straight
guilty plea to Count One of the indictment, which the district
court accepted.
The PSR was disclosed to the parties on January 31,
2013. It stated that the maximum term of imprisonment was twenty
years pursuant to 8 U.S.C. § 1326(b)(2). According to the PSR,
Jiménez's base offense level was eight under U.S.S.G. § 2L1.2(a).
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The PSR applied a sixteen-level enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) because Jiménez was convicted in 2004 of
attempted third degree sexual abuse and sentenced to eighteen
months' incarceration, which rendered that offense a crime of
violence under the Sentencing Guidelines. The PSR did not
recommend an acceptance-of-responsibility reduction because Jiménez
refused to discuss the pending federal offense with the probation
officer. This resulted in a total offense level of twenty-four.
Since Jiménez has a criminal history category of IV, the PSR
calculated a GSR of seventy-seven to ninety-six months of
imprisonment and a term of supervised release of not more than
three years.
In February 2013, Jiménez objected to the PSR's
recommendation to deny a three level reduction for acceptance of
responsibility. He claimed that his reluctance to discuss the
offense with the probation officer was not due to lack of remorse,
but rather due to his attorney's advice not to discuss the case
with anyone to avoid miscommunication because of Jiménez's language
barrier.
In his sentencing memorandum filed on June 20, 2013,
Jiménez admitted his 2004 conviction and acknowledged that he could
not challenge the legality of that conviction. He alleged,
however, that 8 U.S.C. § 1326(a) sets a two-year maximum period of
incarceration for reentering the United States after having been
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deported and that sentencing him to more than two years pursuant to
the sentence enhancement provision of 8 U.S.C. § 1326(b)(2) would
"violate the Fifth Amendment Due Process and Indictment Clauses, as
well as the Sixth Amendment's jury trial provision," because
"[n]either the Indictment nor the Government Version in this case
listed an aggravated felony as being present in [his] case."
In response, the Government asserted that under
Almendarez-Torres v. United States, 523 U.S. 224 (1998), the fact
of a prior conviction need not be alleged in an indictment or
submitted to a jury, and that, in any event, the indictment in this
case alleged a violation of 8 U.S.C. §§ 1326(a) and (b)(2) and the
latter prescribes a statutory maximum of twenty years. It also
emphasized that Jiménez was advised at the change-of-plea hearing
that the statutory maximum was twenty years, and that he admitted
the fact of the aggravated-felony conviction that triggered
§ 1326(b)(2).
The sentencing hearing took place on August 2, 2013.
There, Jiménez conceded that his 2004 conviction of attempted third
degree sexual abuse was "valid," and that it was a conviction for
an "aggravated felony." The district court asked Jiménez whether
he was moving to withdraw his guilty plea, to which Jiménez
responded in the negative.
The district court held that Jiménez's argument regarding
the statutory maximum penalty was "foreclosed by the current state
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of Supreme Court authority." The court noted that Jiménez was on
notice of the enhanced penalty before he pleaded guilty and that
the court had also advised him of the increased penalty during the
change-of-plea proceedings. Thus, it concluded that the twenty
year maximum under § 1326(b)(2) was applicable.
The district court determined that Jiménez's base offense
level was eight under U.S.S.G. § 2L1.2(a), and that a sixteen level
enhancement was appropriate under U.S.S.G. § 2L1.2(b)(1)(A)(ii)
because Jiménez had reentered the United States subsequent to
having been deported after a conviction for "a crime of violence."
The court granted a three-level reduction for Jiménez's acceptance
of responsibility, resulting in a total offense level of twenty-
one. This, in conjunction to Jiménez's criminal history category
of IV, yielded a GSR of fifty-seven to seventy-one months of
imprisonment.
The court then considered the 18 U.S.C. § 3553(a)
sentencing factors and noted that Jiménez's non-immigration
offenses separated him from most defendants appearing in court on
immigration charges. It also highlighted that Jiménez "has been
unusually determined to return to the United States and . . . break
the immigration laws of this country," and that, since his last
sentence of forty-six months did not deter him, it would choose a
higher sentence. Ultimately, the court sentenced Jiménez to fifty-
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seven months of imprisonment, at the bottom of the GSR. This
timely appeal followed.
II. Discussion
Jiménez alleges that because neither the indictment nor
the "Prosecution Version" claimed that he was convicted of any
"aggravated felony" prior to being deported, § 1326(b)(2) is
inapplicable and his sentence greater than the two-year maximum
allowed under § 1326(a) violates his Fifth and Sixth Amendment
rights. We disagree.
Subsection (a) of 8 U.S.C. § 1326 "forbids an alien who
once was deported to return to the United States without special
permission, and it authorizes a prison term of up to, but no more
than, two years." Almendarez-Torres, 523 U.S. at 226. "Subsection
(b)(2) of the same section authorizes a prison term of up to, but
no more than, 20 years for 'any alien described' in subsection (a),
if the initial 'deportation was subsequent to a conviction for
commission of an aggravated felony.'" Id. (quoting 8 U.S.C.
§ 1326(b)(2)). Jiménez admits that he was deported subsequent to
his conviction in 2004 for attempted third degree sexual abuse,
which he concedes was a valid conviction for an aggravated felony.
He also admits that he illegally returned to the United States
after this conviction and subsequent deportation. He claims,
however, that the enhanced penalty provision of § 1326(b)(2) is
inapplicable because his aggravated felony conviction was not
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included in his indictment or in the "Prosecution Version" of the
facts giving rise to the offense. His argument is foreclosed by
binding Supreme Court precedent.
In Almendarez-Torres, the defendant alleged that
§ 1326(b)(2) defined a crime separate from § 1326(a) and that his
aggravated felony conviction was an element of the crime defined in
subsection (b)(2), which needed to be mentioned in the indictment.
Almendarez-Torres, 523 U.S. at 224. He claimed that because his
indictment did not mention his earlier aggravated felony
convictions, he could not be sentenced to more than two years'
imprisonment, the maximum authorized for an offender without an
earlier conviction. Id. The Supreme Court rejected the
defendant's argument. It held that subsection (b)(2) "is a penalty
provision, which simply authorizes a court to increase the sentence
for a recidivist." Id. at 226. Since it does not define a
separate crime, the indictment does not have to mention an earlier
conviction. Id. at 226-27.3
Recognizing that Almendarez-Torres is clearly on-point
and forecloses his argument, Jiménez urges us not to follow it. He
claims that we can imply from Apprendi v. New Jersey, 530 U.S. 466
3
We note that even before Almendarez-Torres was decided, we had
held that "§ 1326(b) should be construed as a sentence enhancement
provision. The indictment therefore need not have alleged
[defendant's] prior aggravated felony conviction to permit his
sentencing under § 1326(b)." United States v. Forbes, 16 F.3d
1294, 1300 (1st Cir. 1994).
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(2000),4 and other more recent cases from the Supreme Court, that
Almendarez-Torres is no longer good law. Jiménez predicts that if
faced with this issue again, the Supreme Court would now rule that
§ 1326(b)(2) defines a separate crime and that the indictment must
mention the prior aggravated felony conviction as an element of the
offense. In support of his argument, he cites Descamps v. United
States, 133 S. Ct. 2276 (2013); Alleyne v. United States, 133
S. Ct. 2151 (2013);5 and Apprendi, 530 U.S. 466.
In Almendarez-Torres, the Supreme Court resolved the
exact same issue raised here by Jiménez. In so doing, it clearly
held that the indictment need not mention the prior aggravated
felony conviction in order for the statutory maximum penalty of
§ 1326(b)(2) to be applicable to a defendant charged under § 1326
because it is a matter of recidivism, which "is as typical a
sentencing factor as one might imagine." Almendarez-Torres, 523
U.S. at 230. Even though the Supreme Court has cast some doubt as
to whether Almendarez-Torres was correctly decided, it has never
revisited the issue or otherwise disavowed its application.
Instead, it has stated that Almendarez-Torres is still binding.
4
In Apprendi, 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 maximum must be submitted to
a jury, and proved beyond a reasonable doubt." 530 U.S. at 490.
5
Alleyne extended Apprendi's rule to facts that increase the
mandatory minimum. "Facts that increase the mandatory minimum
sentence are . . . elements and must be submitted to the jury and
found beyond a reasonable doubt." Alleyne, 133 S. Ct. at 2158.
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See Descamps, 133 S. Ct. at 2295 (Thomas, J., concurring) ("[T]his
Court has not yet reconsidered Almendarez-Torres, which draws an
exception to the Apprendi line of cases for judicial factfinding
that concerns a defendant's prior convictions." (citation
omitted)); Alleyne, 133 S. Ct. at 2160 n.1 ("In Almendarez-Torres
we recognized a narrow exception to this general rule for the fact
of a prior conviction. Because the parties do not contest that
decision's vitality, we do not revisit it for purposes of our
decision today." (citation omitted)); Apprendi, 530 U.S. at 489-90
("Even though it is arguable that Almendarez-Torres was incorrectly
decided, and that a logical application of our reasoning today
should apply if the recidivist issue were contested, Apprendi does
not contest the decision's validity and we need not revisit it for
purposes of our decision today to treat the case as a narrow
exception to the general rule we recalled at the outset."). We
have also held as much. See United States v. Rodríguez, 759 F.3d
113, 122 (1st Cir. 2014) (holding that Almendarez-Torres "remains
good law" (quoting United States v. Carrigan, 724 F.3d 39, 51 n.4
(1st Cir. 2013))).6
6
In an attempt to distinguish his case from Almendarez-Torres,
Jiménez also claims that, unlike the defendant in that case, he
"did not admit any prior conviction" for an aggravated felony.
However, the record belies his statement. The record clearly shows
that Jiménez was advised at his initial appearance and at the
change of plea hearing that the offense charged had a potential
penalty of up to twenty years' imprisonment. Also, the caption of
the indictment, as well as the synopsis that was filed therewith
reflected that he was subject to up to twenty years of imprisonment
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Furthermore, the Supreme Court has clearly stated that we
should not conclude that its more recent cases have, by implication,
overruled an earlier precedent. Specifically, in Agostini v.
Felton, 521 U.S. 203, 237 (1997), the Supreme Court stated as
follows: "We reaffirm that 'if a precedent of this Court has direct
application in a case, yet appears to rest on reasons rejected in
some other line of decisions, the Court of Appeals should follow the
case which directly controls, leaving to this Court the prerogative
of overruling its own decisions.'" Id. (quoting Rodríguez de Quijas
v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)).
In light of the foregoing, we conclude that neither the
indictment nor the "Prosecution Version" had to mention Jiménez's
prior aggravated felony conviction in order for him to be subject to
the twenty-year maximum sentence allowed under § 1326(b)(2).
III. Conclusion
Jiménez's argument is foreclosed by binding Supreme Court
precedent. Unless and until said court overrules its own decision,
we must follow it. Accordingly, Jiménez's sentence is affirmed.
AFFIRMED.
under 8 U.S.C. § 1326(b)(2), thus putting him on notice of the
enhanced penalty before he pleaded guilty. Jiménez then admitted
the fact of the aggravated-felony conviction. Through his
sentencing memorandum, he admitted that he had the 2004 conviction
and that he could not challenge its legality. Afterwards, at the
sentencing hearing, Jiménez conceded that his 2004 conviction was
"valid" and that it was a conviction for an aggravated felony. He
was then asked whether he was moving to withdraw his guilty plea,
to which he responded in the negative.
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