United States v. Adrian Hernandez-Angulo

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 05-12985 ELEVENTH CIRCUIT
DECEMBER 19, 2005
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK

D. C. Docket No. 04-00466-CR-1-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ADRIAN HERNANDEZ-ANGULO,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(December 19, 2005)

Before DUBINA, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

Appellant Adrian Hernandez-Angulo, a federal prisoner, appeals his 41-
month sentence for unlawful entry of a deported alien, in violation of 8 U.S.C. §§

1326(a), (b)(2). Hernandez was sentenced based on an offense level that was

increased because he had previously been deported because of a felony assault

conviction, and he challenges that increase. Hernandez claims that (1) as his prior

conviction was not specifically mentioned in the indictment, the district court

violated his constitutional rights when it enhanced his sentence; (2) Almendarez-

Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998),

is no longer good law; and (3) his sentence violates the Sixth Amendment

following the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296,

124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

We review the district court’s application of law to the facts and

constitutional challenges to a sentence de novo. United States v. Cantellano, ___

F.3d ___, No. 05-11143 at *2 (11th Cir. Nov. 15, 2005). Although Blakely does

not apply to the Federal Sentencing Guidelines, see Blakely, 542 U.S. at 305 n.9,

124 S. Ct. at 2538 n.9, the Supreme Court held in United States v. Booker, 543

U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), that the federal sentencing

guidelines are subject to the jury trial requirements of the Sixth Amendment. 543

U.S. at ___, 125 S. Ct. at 752-55. Thus, the Booker court held that “the Sixth

Amendment right to trial by jury is violated where under a mandatory guidelines

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system a sentence is increased because of an enhancement based on facts found by

the judge that were neither admitted by the defendant nor found by the jury.”

United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied, 125 S.

Ct. 2935 (2005) (emphasis in original). A defendant who fails to object to the facts

in the PSI has admitted them. United States v. Shelton, 400 F.3d 1325, 1330 (11th

Cir. 2005). The holdings in Blakely/Booker do not apply to the use of prior

convictions to enhance a defendant's sentence. See United States v.

Orduno-Mireles, 405 F.3d 960, 962 (11th Cir.), cert. denied, 126 S. Ct. 223 (2005).

Title 8, section 1326 sets the criminal penalties for removed aliens who

reenter the United States. 8 U.S.C. § 1326. Section 1326(b)(2) states that an alien

“whose removal was subsequent to a conviction for commission of an aggravated

felony, such alien shall be fined under such Title, imprisoned not more than 20

years, or both.” 8 U.S.C. § 1326(b)(2). An aggravated felony is defined as a crime

of violence, as defined in 18 U.S.C. § 16, for which the term of imprisonment is at

least one year. 8 U.S.C. § 1101(a)(43)(F). A crime of violence is one that “has as

an element the use, attempted use, or threatened use of physical force against the

person or property of another.” 18 U.S.C. § 16.

In Almendarez-Torres, the Supreme Court held that (1) 8 U.S.C.

§ 1326(b)(2) is an enhancement to the crime described in 8 U.S.C. § 1326(a), not a

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separate crime; and consequently (2) neither the Constitution nor the statute require

the federal government to charge that a defendant was convicted of an aggravated

felony in the indictment. Almendarez-Torres, 523 U.S. at 230-31, 243-44, 118 S.

Ct. at 1224-25, 1230-31. Thus far, no Supreme Court decision has disturbed the

conclusion reached in Almendarez-Torres. Cantellano, ___ F.3d ___, No. 05-

11143 at *6. Accordingly, “a district court does not err by relying on prior

convictions to enhance a defendant’s sentence,” and those prior convictions need

not be proven beyond a reasonable doubt. Shelton, 400 F.3d at 1329.

After reviewing the record and both parties’ briefs, we find no reversible

error. Hernandez was sentenced after the Supreme Court’s decision in Booker was

released, and the record shows that the district court was aware the guidelines were

advisory. Further, Hernandez admitted the fact of his assault conviction during the

plea colloquy, and did not object to its description in the PSI. Thus, even if the

holdings in Blakely/Booker did apply to the use of prior convictions to enhance a

defendant’s sentence, there would be no error as Hernandez admitted that he had

been convicted of a crime, an element of which was the use of force against

another. Shelton, 400 F.3d at 1330, 18 U.S.C. § 16. However, as we have

repeatedly held that Almendarez-Torres remains good law, the government was not

required to allege that Hernandez had been convicted of an aggravated felony in

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order to increase his sentence. See Cantellano, ___ F.3d ___, No. 05-11143 at *5-

6. Moreover, the indictment did allege that Hernandez had violated 8 U.S.C. §

1326(b)(2), so he had notice of the increased sentence. The district court did not

err in relying on prior convictions to enhance Hernandez’s sentence. See Shelton,

400 F.3d at 1329. For the above-stated reasons, we affirm Hernandez’s sentence.

AFFIRMED.

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