[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 15, 2005
No. 05-12442 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20689-CR-MGC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDERICO VILCHEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 15, 2005)
Before BIRCH, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Frederico Vilchez pled guilty to a charge for illegal reentry after deportation,
in violation of 8 U.S.C. § 1326(a) and (b)(1), and was sentenced to 41 months of
imprisonment. Vilchez argues on appeal that the use of the prior convictions to
enhance his sentence violated his Fifth and Sixth Amendment rights and that the
use of an unproven and unadmitted prior conviction to enhance his sentence under
the advisory Sentencing Guidelines violates the Ex Post Facto and Due Process
Clauses. After review, we AFFIRM.
I. BACKGROUND
According to the facts stipulated to at the plea hearing, Vilchez is a Peruvian
citizen who was previously deported from the United States in 1996. In April
2004, he was incarcerated in a Dade County Jail, charged with false imprisonment,
stalking, battery, threatening to tamper with a witness, driving under the influence,
and driving without a license. The government charged him with illegal reentry
after deportation, in violation of 8 U.S.C. § 1326(a) and (b)(1). Under
§ 1326(b)(1), Vilchez’s prior felony drug convictions increased the statutory
maximum sentence from two years, under § 1326(a), to ten years. The district
court sentenced Vilchez to 41 months imprisonment, which is above the two-year
maximum under § 1326(a).
The central issue raised in this case involves the appellant’s claim that the
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government is obligated to prove his prior drug convictions in the guilt
determination phase of his case in order to use them at the sentencing hearing.
Vilchez makes a half-hearted attempt to distinguish binding circuit precedent but
admits that his main purpose is to preserve the issue for petition for certiorari to the
United States Supreme Court.
II. DISCUSSION
Vilchez objected to the government’s failure to allege in the indictment his
prior convictions, which resulted in a increased statutory maximum sentence under
8 U.S.C. § 1326(b)(1), and to the enhancement of his offense level under the
Guidelines in the district court. We review these claims de novo on appeal, and
reverse the later only for harmful error. United States v. Candelario, 240 F.3d
1300, 1306 (11th Cir. 2001); United States v. Paz, 405 F.3d 946, 948 (11th Cir.
2005) (per curiam).
The Supreme Court established in Almendarez-Torres v. United States that a
defendant’s prior conviction, in the context of the increased-penalty provision of 8
U.S.C. § 1326(b), is merely a sentencing factor that does not have to be submitted
to the jury and proved beyond a reasonable doubt. 523 U.S. 224, 247, 118 S. Ct.
1219, 1232–33 (1998). The Court held that the use of a prior conviction as a
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sentencing factor does not violate the Due Process Clause. Id. at 239–41, 247, 118
S. Ct. at 1229, 1233. The Court later held in Apprendi v. New Jersey that “[o]ther
than 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. 466, 490, 120 S. Ct. 2348, 2362–63 (2000). The
Court also stated that “we need not revisit [Almendarez-Torres] for purposes of our
decision today to treat the case as a narrow exception to the general rule.” Id. at
490, 120 S. Ct. at 2362.
In Blakely v. Washington, the Supreme Court, in examining the state of
Washington’s sentencing guidelines, held that the imposition of a sentencing
enhancement must be supported by facts that were either admitted by the defendant
or found beyond a reasonable doubt by the jury. 542 U.S. 296, 303–04, 124 S. Ct.
2531, 2537–38. In United States v. Booker, the Supreme Court extended the
reasoning of Blakely to the federal Sentencing Guidelines, concluding that the
mandatory nature of the Sentencing Guidelines rendered them incompatible with
the Sixth Amendment’s guarantee to the right to a jury trial. 543 U.S. at ___, 125
S. Ct. 738, 749–51 (2005). The Court excised several sections of the Guidelines,
making the Guidelines advisory, not mandatory. Id. at ___, 125 S. Ct. at 756–57.
In extending its holding in Blakely to the Federal Guidelines, the Court, in Booker,
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explicitly reaffirmed its rationale in Apprendi that a fact, other than a prior
conviction, that supports a sentence exceeding the statutory maximum must be
admitted by the defendant or submitted to a jury and proved beyond a reasonable
doubt. Id. at ___, 125 S. Ct. at 756.
In United States v. Marseille, we declined to interpret the Supreme Court’s
rationale in Apprendi as overruling the prior Supreme Court holding in
Almendarez-Torres that the government “need not allege in its indictment and need
not prove beyond a reasonable doubt that a defendant had prior convictions for a
district court to use those convictions for purposes of enhancing a sentence.” 377
F.3d 1249, 1257 (11th Cir.), cert. denied, 125 S. Ct. 637 (2004). We later clarified
that the Supreme Court’s decision in Almendarez-Torres “was left undisturbed by
Apprendi, Blakely, and Booker.” United States v. Shelton, 400 F.3d 1325, 1329
(11th Cir. 2005).
Vilchez presents two arguments on this appeal. First, he argues that a prior
conviction that was not listed in the indictment, proven beyond a reasonable doubt,
or admitted cannot be used to increase his statutory maximum from two years to
ten years under 18 U.S.C. § 1326(b)(1). Second, he contends that the sentencing
court violated his constitutional rights at sentencing by enhancing his offence level
pursuant to U.S.S.G. § 2L1.2(b)(1)(A) (2004). We address these in turn.
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A. 8 U.S.C. § 1326(b)(1)
There is a two-year maximum sentence for aliens who illegally attempt to
re-enter the United States after being deported. 8 U.S.C. § 1326(a). However, if
an alien’s initial deportation was subsequent to that person’s conviction for the
commission of three or more misdemeanors involving drugs or a felony, the
statutory maximum increases to ten years. 8 U.S.C. § 1326(b)(1).
In this case, the district court correctly relied on Vilchez’s prior convictions
to sentence him in accordance with the increased penalty provision of
§ 1326(b)(1). See Almendarez-Torres, 523 U.S. at 247, 118 S. Ct. at 1232–33.
For the Sixth Amendment, Booker made clear that prior convictions need not be
admitted to by a defendant or proven to a jury beyond a reasonable doubt.1 543
U.S. at ___, 125 S. Ct. at 756. Therefore, because Almendarez-Torres remains
good law, we reject Vilchez’s claim that the increase in his statutory maximum
sentence from two years to ten years under 8 U.S.C. § 1326(b)(1) violated his Fifth
or Sixth Amendment rights. See Shelton, 400 F.3d at 1329.
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Furthermore, Vilchez did not object to the truth of the facts of his prior convictions.
His objection was to the use of those convictions at sentencing without first listing them in the
indictment or proving them beyond a reasonable doubt. Therefore, for Booker purposes, Vilchez
admits the facts of his past convictions, and their use at sentencing was not improper. See
United States v. Burge, 407 F.3d 1183, 1191 (11th Cir.), cert. denied, 126 S. Ct. 551 (2005).
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B. U.S.S.G. § 2L1.2(b)(1)(A)
Vilchez’s offense level was increased from 8 to 24, pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A). That section provides for a 16-level increase to a defendant’s
base offense level if the defendant was previously deported or unlawfully remained
in the United States after, inter alia, a conviction for a felony that is a drug
trafficking offense for which the sentence imposed exceeded 13 months. U.S.S.G.
§ 2L1.2(b)(1)(A).
In United States v. Duncan, we held that, post-Booker, when a defendant
was sentenced to the statutory maximum for offenses committed pre-Booker, that
defendant had “sufficient warning” to satisfy due process and ex post facto
concerns. 400 F.3d 1297, 1308 (11th Cir.), cert. denied, 126 S. Ct. 432 (2005).
In this case, Vilchez knew at the time the offense was committed that the
Guidelines allowed the judge to engage in judicial fact-finding and that ten years’
imprisonment was a potential consequence of his actions. Therefore, there was no
ex post facto or due process violation. See Duncan, 400 F.3d at 1307. As to
Vilchez’s argument that the district court’s enhancement of his sentence under the
Guidelines violated his Sixth Amendment right to a jury trial, the Supreme Court,
in Booker, held that it was the mandatory nature of the Sentencing Guidelines that
implicated the Sixth Amendment. Booker, 543 U.S. at ___, 125 S. Ct. at 750.
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Here, the district court acknowledged that it was applying the Guidelines as
advisory. Therefore, under Booker, Vilchez’s Sixth Amendment rights were not
violated. Furthermore, because Almendarez-Torres remains good law, there is no
Sixth Amendment violation by applying a Guidelines sentencing enhancement
based on prior convictions. United States v. Camacho-Ibarquen, 410 F.3d 1307,
1315–16 (11th Cir.) (per curiam), cert. denied, 126 S. Ct. 457 (2005).
III. CONCLUSION
Vilchez appealed the determination of his sentence following a guilty plea.
We find no error. AFFIRMED.
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