[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 19, 2005
No. 04-15924 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-14015-CR-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRE JAMAAL WILLIAMS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 19, 2005)
Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.
PER CURIAM:
Andre Jamaal Williams appeals from his 120-month sentence imposed after
he pled guilty to possession with intent to distribute five grams or more of cocaine
base, in violation of 21 U.S.C. § 841(a)(1) (Count Two). Because prior
convictions are not a separate element of an offense that the government is
required to prove beyond a reasonable doubt, the district court did not err by
applying 21 U.S.C. § 851 to increase Williams’s sentence based on his admitted
previous drug convictions. Moreover, because Williams was sentenced to the
statutory mandatory minimum sentence rather than under the federal Sentencing
Guidelines, the district court did not err under United States v. Booker, 543 U.S.
__, 125 S. Ct. 738, 160 L.Ed.2d 621 (2005). Accordingly, we AFFIRM.
I. BACKGROUND
Williams was indicted for possession with intent to distribute five grams or
more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (Count Two). He pled
guilty pursuant to a written plea agreement. The government filed an information
pursuant to 21 U.S.C. § 851, indicating its intention to seek an enhancement to
Williams’s sentence based on his prior convictions for two counts of possession
and sale of cocaine. See Admin. Papers.1 The information stated that the
enhancement provided a mandatory minimum sentence of 10 years of
imprisonment. Williams filed no response to the information. During the plea
1
The government filed an unopposed motion to supplement the record with this document,
explaining that it had not been properly docketed in the district court due to a typographical error.
(See Admin. Papers, Motion dated 12 April 2005). The clerk granted this request. Id. at 3.
2
colloquy, the magistrate judge informed Williams that, in accordance with
paragraph two of the plea agreement, his sentence would be enhanced based upon
his prior convictions for felony drug offenses. Williams conceded that he had
received notice of the enhancement, and further stated that he understood and did
not object.
The presentence investigation report (“PSI”) calculated Williams’s total
offense level as 26, pursuant to U.S.S.G. § 2D1.1(a)(3), and his criminal history
category as IV. The PSI noted that he previously was convicted for selling $20
worth of crack cocaine. Based on Williams’s offense level and criminal history
category, the guidelines range was 92 to 115 months of imprisonment. However,
the PSI stated that, under U.S.S.G. § 5G1.1(b), the guideline range was 120 months
of imprisonment based on the statutory minimum sentence. Williams objected to
the denial of a three-level reduction in offense level for acceptance of
responsibility. He also objected to the recommendation that he be sentenced as a
“career offender,” arguing that it would violate his Fifth and Sixth Amendment
rights under Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531, 159 L.Ed.2d
403 (2004). The probation officer noted that the PSI did not recommend that
Williams be sentenced as a career offender, but instead noted that the government
had filed an information pursuant to 21 U.S.C. § 851.
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At the sentencing hearing, the district court granted Williams a three-level
reduction for acceptance of responsibility. The district court then denied his
request that he not receive the enhancement to his sentence based on his prior
convictions due to the application of Blakely. The district court sentenced
Williams to the statutory mandatory minimum sentence of 120 months of
imprisonment.
II. DISCUSSION
On appeal, Williams argues that the district court erred under Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely2
by enhancing his sentence based on his prior convictions, which violated his
constitutional rights. He contends that the facts of his prior conviction should have
been charged in the indictment. He concedes that under Almendarez-Torres v.
United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), prior
convictions are excepted from the rule set forth in Apprendi. However, he further
contends that the case is no longer valid.
We review preserved constitutional errors de novo. United States v. Paz,
405 F.3d 946, 948 (11th Cir. 2005) (per curiam). If a defendant has a prior drug
2
Although the Supreme Court extended Blakely to the federal Sentencing Guidelines in
Booker, Williams fails to mention Booker in his arguments on appeal, despite the fact that his brief
was filed two months after the Court decided the case. See Appellant’s Br.; Booker, 543 U.S. __,
125 S. Ct. 738.
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conviction, the mandatory minimum sentence for possession with intent to
distribute five grams or more of cocaine base is 120 months of imprisonment. See
21 U.S.C. § 841(b)(1)(B). Under 21 U.S.C. § 851, a defendant denying the
convictions alleged in the information filed by the government should file a written
response. 21 U.S.C. § 851(c)(1). In United States v. Shelton, we noted that the
sentence for a firearm count was not at issue because Shelton was sentenced to the
mandatory statutory minimum. 400 F.3d 1325, 1333 n.10 (11th Cir. 2005).
As we stated in United States v. Orduno-Mireles, the Supreme Court “left
undisturbed its holding in Almendarez-Torres that recidivism is not a separate
element of an offense that the government is required to prove beyond a reasonable
doubt.” 405 F.3d 960, 962 (11th Cir. 2005) (holding that a sentencing guidelines
enhancement based on a prior conviction was properly applied and did not violate
Booker); see also United States v. Camacho-Ibarquen, No. 04-11155, manuscript
op. at 16-17 (11th Cir. Jun. 2, 2005) (per curiam) (rejecting plain-error Booker
challenge to district court’s application of a sentencing guidelines enhancement
based solely on defendant’s prior convictions, which Almendarez-Torres does not
require to be charged and proved beyond a reasonable doubt). Moreover, we held
that a district court did not err in applying sentencing enhancements based on facts
admitted by the defendant. See Shelton, 400 F.3d at 1330.
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The Apprendi/Blakely/Booker line of cases is not applicable to Williams’s
sentence because he received the statutory mandatory minimum of 120 months of
imprisonment, rather than being sentenced under the Guidelines. See 21 U.S.C.
§ 841(b)(1)(B); Shelton, 400 F.3d at 1333 n.10. Moreover, even if
Apprendi/Blakely/Booker were to apply, the district court did not err because (1)
recidivism is not a separate element of an offense; and (2) Williams admitted to his
prior convictions, through his statements at the plea hearing and by failing to
challenge them in the information or in the PSI. See Orduno-Mireles, 405 F.3d
at 962; Shelton, 400 F.3d at 1330.
III. CONCLUSION
Because prior convictions are not a separate element of an offense that the
government is required to prove beyond a reasonable doubt, the district court did
not err by applying 21 U.S.C. § 851 to increase Williams’s sentence, based on his
admitted previous drug convictions. Moreover, because Williams was sentenced to
the statutory mandatory minimum sentence rather than under the federal
Guidelines, the district court did not err under Booker. Accordingly, we AFFIRM.
6