Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
11-22-2006
USA v. Jimenez-Cohenete
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4473
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"USA v. Jimenez-Cohenete" (2006). 2006 Decisions. Paper 161.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/161
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 05-4473
____________
UNITED STATES OF AMERICA
v.
VICTOR JIMENEZ-COHENETE,
a/k/a Hermes Crisostomo
Appellant
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 04-cr-00098)
District Judge: Honorable Eduardo C. Robreno
____________
Submitted Under Third Circuit LAR 34.1(a)
September 25, 2006
Before: RENDELL, CHAGARES and ROTH, Circuit Judges.
(Filed November 22, 2006)
____________
OPINION OF THE COURT
____________
CHAGARES, Circuit Judge.
On February 26, 2004, Victor Jimenez-Cohenete was charged with violating 8
U.S.C. § 1326(a) and (b)(2) (reentry by an alien after deportation). Attached to the
indictment was a notice of prior conviction of three counts of felony aggravated assault,
which are aggravated felonies as that term is defined and used in 8 U.S.C. §§ 1101(a)(43)
and 1326(b)(2). Jimenez-Cohenete pleaded guilty before the District Court. On August
6, 2004, Jimenez-Cohenete was sentenced by the District Court to 46 months
incarceration, three years supervised release, and a special assessment of $100. On
appeal, this Court vacated the sentence and remanded for resentencing under United
States v. Booker, 543 U.S. 220 (2005). On September 13, 2006, the District Court held a
resentencing hearing and imposed the same sentence as before.
Section 1326(b)(2) increases the authorized prison sentence from a maximum of
two years to a maximum of twenty years if the person’s deportation followed conviction
for an aggravated felony. Jimenez-Cohenete argues that, because his prior felony
convictions increased the statutory maximum penalty for his reentry offense, those
offenses should have been charged in the indictment and proven to a jury beyond a
reasonable doubt. He contends that the Government’s failure to do so violated the Fifth
and Sixth Amendments. Put another way, Jimenez-Cohenete challenges the vitality of
Almendarez-Torres v. United States, 523 U.S. 224, 226 (1998) (holding that facts
regarding prior convictions need not be charged in an indictment, nor proven to a jury
2
beyond a reasonable doubt), in light of subsequent Supreme Court decisions in Apprendi
v. New Jersey, 530 U.S. 466 (2000), and Booker.
Jimenez-Cohenete’s challenge, as he acknowledges, is precluded by United States
v. Ordaz, 398 F.3d 236 (3d Cir. 2005). In Ordaz, we recognized the “tension between the
spirit of Blakely and Booker that all facts that increase the sentence should be found by a
jury and the Court’s decision in Almendarez-Torres.” Id. at 241. Nonetheless, bound by
Almendarez-Torres, we held that a District Court’s determination regarding the fact of a
defendant’s prior conviction did not violate the Fifth and Sixth Amendments. See id.
Jimenez-Cohenete suggests that the Supreme Court’s decision in Shepard v.
United States, 544 U.S. 13, 25-26 (2005) (holding that a sentencing court, in determining
whether a burglary was a “violent felony” that resulted in an enhanced statutory
minimum, had to rely on charging documents, elements of offenses, plea colloquies, and
express findings by the trial judge, and could not look to police reports or complaint
applications), decided two weeks after Ordaz, supports limiting Almendarez-Torres. This
argument, too, is precluded by a prior decision of this Court. See United States v.
Coleman, 451 F.3d 154, 160 (3d. Cir. 2006) (holding that Shepard did not affect the
continuing validity of Almendarez-Torres).
Almandarez-Torres is the law of the land until the United States Supreme Court
holds otherwise. Ordaz, 398 F.3d at 241. Accordingly, we will affirm the judgment of
the District Court.
3