United States v. Michael

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 16, 2011
No. 10-15871 JOHN LEY
Non-Argument Calendar CLERK
________________________

D.C. Docket No. 9:09-cr-80084-KAM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSEPH NESTOR MICHEL,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
________________________

(June 16, 2011)

Before BARKETT, HULL and FAY, Circuit Judges.

PER CURIAM:

After pleading guilty, Joseph Michel appeals his 87-month sentence for

illegal reentry of a deported alien, in violation of 8 U.S.C. § 1326(a) and (b)(2).
After review, we affirm.

On appeal, Michel argues that the district court violated his Fifth and Sixth

Amendment rights by imposing a 16-level guidelines enhancement, pursuant to

U.S.S.G. § 2L1.2(b)(1)(A), based upon Michel’s prior felony conviction for armed

robbery with a weapon. Michel contends that the district court could not rely on

this prior conviction because it was not charged in Michel’s indictment or found

by a jury beyond a reasonable doubt.

However, as Michel acknowledges, this argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998). We

repeatedly have explained that, even after Apprendi v. New Jersey, 530 U.S. 466,

120 S. Ct. 2348 (2000), and its progeny Blakely v. Washington, 542 U.S. 296, 124

S. Ct. 2531 (2004), and United States v. Booker, 543 U.S. 220, 125 S. Ct. 738

(2005), we are bound by Almendarez-Torres until it is explicitly overruled by the

Supreme Court. See, e.g., United States v. Greer, 440 F.3d 1267, 1273-74 (11th

Cir. 2006); United States v. Gibson, 434 F.3d 1234, 1246-47 (11th Cir. 2006).

Michel argues that Almendarez-Torres permits a sentencing court to find

only the mere fact of a conviction and that Apprendi, Booker, and Shepard v.

United States, 544 U.S. 13, 125 S. Ct. 1254 (2005), bar judge-made findings about

the factual nature of the prior convictions. This Court has already rejected this

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argument. See Greer, 440 F.3d at 1275 (explaining that Apprendi, Booker and

Shepard do not “forbid a judge from determining the factual nature of a prior

conviction,” but instead “restrict[] the sources or evidence that a judge (instead of

a jury) can consider in making that finding” (quotation marks omitted)).

In any event, at sentencing the district court did not resolve any disputed

facts related to Michel’s prior conviction for armed robbery with a weapon.

Michel objected to the 16-level enhancement only on constitutional grounds.

Michel did not object to the fact of his prior conviction (paragraph 26 of his

Presentence Investigation Report (“PSI”) or argue that his prior conviction did not

qualify as a “crime of violence” for purposes of U.S.S.G. § 2L1.2(b)(1)(A). Thus,

Michel admitted the existence and nature of his prior conviction for sentencing

purposes. See United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005)

(explaining that there is no statutory Booker error where the defendant’s sentence

was enhanced based on facts to which the defendant did not object in the PSI at

sentencing); United States v. Burge, 407 F.3d 1183, 1191 (11th Cir. 2005).

For all these reasons, the district court did not err in using Michel’s prior

armed robbery with a weapon conviction in calculating Michel’s advisory

guidelines range.

AFFIRMED.

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