Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
3-30-2006
USA v. Nunez-Hernandez
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4008
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No.04-4008
UNITED STATES OF AMERICA
v.
JOSE NUNEZ-HERNANDEZ,
a/k/a Jose Nunez,
a/k/a Alex Acosta,
a/k/a Raphael Acosta,
a/k/a Francisco
Rondon-Aradia,
Jose Nunez-Hernandez,
Appellant
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 04-cr-00323)
District Judge: Honorable Berle M. Schiller
_______________
Submitted under Third Circuit LAR 34.1(a)
on September 15, 2005
BEFORE: ROTH, MCKEE and FISHER, Circuit Judges
(Opinion Filed March 30, 2006)
ROTH, Circuit Judge:
This case is an appeal from the District Court’s judgment of conviction and
sentence. For the reasons given below, we will affirm the conviction and sentence.
I. Factual Background and Procedural History
As the facts are well known to the parties, we give only a brief description of the
issues and procedural posture of the case.
On June 3, 2004, the defendant, Jose Nunez-Hernandez, was charged with
reentering the United States after deportation without obtaining prior approval from the
Attorney General. 8 U.S.C.§ 1326(a) provides for up to two years imprisonment for
anyone who reenters the United States after being deported. 8 U.S.C.§ 1326(b)(2)
provides for up to twenty years imprisonment if the removal was subsequent to a
conviction for an aggravated felony. Notice of prior conviction was attached to the
indictment stating that the defendant had previously been convicted twice of aggravated
felonies as defined by 8 U.S.C. § 1101(a)(43)(B). On July 12, 2004, Hernandez entered
an open plea of guilty to the indictment while not admitting to the prior convictions.*
The Presentence Investigation Report (PSR) calculated a total offense level of 21,
based in large part on the fact that the defendant was deported after being convicted of
felony drug trafficking. The PSR calculated a criminal history of IV based on three prior
*
The District Court did not treat the prior convictions as an element of the offense.
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convictions. The Sentencing Guidelines range for an offense level of 21 and a criminal
history category of IV is 57 to 71 months. Hernandez objected to the PSR’s enhancement
of the total offense level as well as the calculation of his criminal history based on the use
of his prior criminal convictions.
The District Court ruled that Hernandez’s prior convictions for aggravated
felonies could be taken into account under 8 U.S.C.§ 1326(b)(2) without a jury finding
pursuant to the Supreme Court’s decision in United States v. Almendarez-Torres, 523
U.S. 224 (1998). The District Court determined that Hernandez had been deported
following a conviction for an aggravated felony. Therefore, the statutory maximum
penalty for the offense was raised from two to twenty years pursuant to 8 U.S.C. §
1326(b)(2).
Next, the District Court accurately predicted the Supreme Court’s two holdings in
United States v. Booker, 125 S. Ct. 738 (2005) where the Court held that the Sentencing
Guidelines were unconstitutional as applied and thus are merely advisory. Having ruled
that the Guidelines were advisory, the District Court sentenced Hernandez to a 57-month
term of imprisonment, a $100 special assessment, and a three-year period of supervised
release. The 57-month term represented the minimum term of incarceration according to
the Guidelines range. This appeal followed.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 because the
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indictment charged an offense against the laws of the United States. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
III. Discussion
Hernandez makes two related challenges to his sentence. First, he questions the
continued validity of Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S.
466 (2000) and the line of related cases. See Blakely v. Washington, 542 U.S. 296
(2004); Booker, 125 S. Ct. 738. In Apprendi, the Supreme Court held that a jury
determination must be made for facts that subject a defendant to a greater maximum
sentence. Id. Here, Hernandez was subject to twenty years imprisonment under 8
U.S.C.§ 1326(b)(2) rather than two years pursuant to 8 U.S.C. § 1326(a) based on his
prior convictions, which during his plea he never admitted occurred. Hernandez contends
that the judge’s factual determination that Hernandez had previously committed an
aggravated felony resulting in deportation was unconstitutional.
Hernandez’s argument fails because Apprendi explicitly declined to overrule
Almendarez-Torres. Id. at 489-90. Moreover, this Court has rejected defendant’s
argument notwithstanding the Apprendi line of cases. See United States v. Ordaz, 398
F.3d 236, 241 (3d Cir. 2005) (noting that the decision in Almendarez-Torres still stands
despite Blakely and Booker because “as an inferior federal court we have the
responsibility to follow directly applicable Supreme Court decisions.”).
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Second, Hernandez makes another challenge ** based on Booker’s remedy holding.
In Booker, the Supreme Court held that the Sentencing Guidelines, in order to pass
constitutional muster, cannot be treated as mandatory. Here, the District Court treated the
Sentencing Guidelines as advisory. Nonetheless, Hernandez claims that his sentence
should be vacated and remanded on the ground that the District Court did not consider
any of the more generic sentencing factors in 18 U.S.C. § 3553(a) as required by Booker.
125 S. Ct. at 764 (“Without the ‘mandatory’ provision, the Act nonetheless requires
judges to take account of the Guidelines together with other sentencing goals.”); United
States v. Crosby, 397 F.3d 103, 115 (2d Cir. 2005) (holding that a “sentencing judge
would commit a statutory error . . . if the judge failed to ‘consider’ the applicable
Guidelines range . . . as well as the other factors listed in section 3553(a)”). Hernandez
claims that the District Court’s failure to consider the other factors in open court
constitutes error. 18 U.S.C. § 3553(c) (“The court, at the time of sentencing, shall state in
open court the reasons for its imposition of the particular sentence.”).
Hernandez’s claim fails for three reasons. First, post-Booker we do not expect the
District Court in every case to conduct an accounting of each 3553(a) factor and note how
each influenced the sentencing decision. United States v Robles, 408 F.3d 1324, 1328
(11th Cir. 2005). Second, the record demonstrates that the District Court considered
Hernandez’s background, family circumstances, criminal history, and reasons for
**
This argument was not presented to the District Court.
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reentering the United States. There is no reason to think that these factors were not
considered in light of the sentencing goals of 18 U.S.C. § 3553(a). Finally, Hernandez
fails to demonstrate plain error by the District Court. United States v. Davis, 407 F.3d
162, 164-5 (3d Cir. 2005) (using the plain error analysis where the defendant did not raise
the Booker issue before the District Court). Moreover, prejudice cannot be presumed
since the District Court applied the Sentencing Guidelines in an advisory fashion. Id.
IV. Conclusion
For the reasons explained above, we will affirm the judgment of conviction and
sentence.
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