[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 04-13896
U.S. COURT OF APPEALS
Non-Argument Calendar ELEVENTH CIRCUIT
________________________ July 6, 2005
THOMAS K. KAHN
D. C. Docket No. 04-20038-CR-DLG CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTURO HERRERA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 6, 2005)
Before BIRCH, HULL and WILSON, Circuit Judges.
PER CURIAM:
Arturo Herrera (“Herrera”) appeals his 23-month sentence, imposed after he
pled guilty to one count of illegal reentry after deportation, in violation of 8 U.S.C.
§§ 1326(a) and (b)(2). We find that the district court did not commit plain error in
applying the Guidelines in a mandatory fashion, because Herrera failed to show
that his substantial rights were affected, or in imposing an eight-level enhancement
under U.S.S.G. § 2L1.2(b)(1)(c), because the record reflected that Herrera had
previously been convicted of a drug offense that qualified as an aggravated felony.
Accordingly, we AFFIRM.
I. BACKGROUND
Herrera was indicted by a federal grand jury for: (1) illegally re-entering the
United States after deportation, in violation of 8 U.S.C. §§ 1326(a) and (b)(2); and
(2) representing himself as a United States citizen to gain entry into the United
States, in violation of 18 U.S.C. § 911. Via a plea agreement, Herrera, pled guilty
to Count 1 of the indictment. The government agreed to dismiss the remaining
count.
At Herrera’s change-of-plea hearing, the government asserted that the
evidence indicated: (1) that Herrera was deported on or about 1 March 1996; (2)
that he was removed from the United States on 27 January 1999; (3) that he had
previously been convicted of an aggravated felony; and (4) that he attempted to
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enter the United States again. Herrera admitted these facts except to the extent that
the government alleged that he had previously been convicted of an aggravated
felony, and he pled guilty to the first count.
According to the presentence investigation report (“PSI”), Herrera’s base
offense level was 8, pursuant to U.S.S.G. § 2L1.2. The PSI added eight additional
levels, under § 2L1.2(b)(1)(c), because Herrera previously had been deported or
unlawfully remained in the United States after a conviction for an aggravated
felony. Three levels were deducted from the base offense level to reflect Herrera’s
acceptance of responsibility, under U.S.S.G. § 3E1.1(a) and (b). The resulting total
offense level was calculated to be 13. The PSI indicated that Herrera’s previous
convictions placed him in a criminal history category of III. Accordingly, the PSI
indicated that the corresponding guideline range was 18 to 24 months. In
describing Herrera’s prior criminal history, the PSI referenced, inter alia, a
previous conviction for criminal possession of a controlled substance in New York.
The PSI indicated that in 1988, Herrera was found guilty and sentenced to 4 years
of imprisonment. The PSI did not indicate, however, the statute which Herrera was
convicted of violating. Neither Herrera nor the government filed objections to the
contents of the PSI.
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At sentencing, the district court asked whether the parties objected to any
aspect of the PSI, and Herrera indicated that he did not. The court then adopted the
findings of fact and conclusions of law contained in the PSI. The court sentenced
Herrera to 23 months of imprisonment and 3 years of supervised release.
II. DISCUSSION
On appeal, Herrera maintains that the district court imposed a sentence
within the guideline range, and included a term of supervised release, because it
understood the Guidelines to be mandatory. He argues that had the court treated
the Guidelines as merely advisory, it might have exercised its discretion to impose
a lesser sentence. Herrera contends that “[t]o say that [he] would receive the same
sentence – including the guideline-mandatory 3-year supervised release term –
absent the guideline range is speculative at best, and on this record, most unlikely.”
Appellant’s Brief at 10. Herrera contends that the PSI failed to consider the
sentencing factors listed in 18 U.S.C. § 3553 when recommending a sentence.
Accordingly, he maintains, his substantial rights were affected, and a resentencing
is warranted.
In response, the government asserts that the district court erred under United
States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005), only in believing
mistakenly that it was required to apply the guidelines in a mandatory fashion.
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Because Herrera did not object below to the imposition of a guideline sentence, the
government contends that we should review his sentence for plain error only. The
government concedes that this Booker error was plain but argues that Herrera has
not shown that the error affected his substantial rights because the facts supporting
his sentencing enhancement were essentially uncontroverted. Furthermore, the
government maintains, Herrera has not demonstrated that there is a reasonable
probability that the district court would have imposed a different sentence had it
considered the Guidelines advisory rather than mandatory In fact, the government
asserts, the fact that the district court imposed a sentence near the top of the
guideline range indicates that it is not likely that the court would have imposed a
lower sentence under advisory guidelines. Finally, the government contends that
Herrera has not demonstrated that the error seriously affected the fairness,
integrity, or public reputation of the judicial proceedings.
Because Herrera did not raise a constitutional challenge to his sentence in
the district court, we review his appellate claims regarding the constitutionality of
his sentence only for plain error. United States v. Shelton, 400 F.3d 1325, 1328
(11th Cir. 2005). To satisfy the plain-error standard, we must find that (1) the
district court committed “error,” (2) the error was plain or obvious, and (3) the
error “affected substantial rights.” Id. at 1328-29. If these criteria are met, we
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may, in our discretion, correct the plain error if it “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. at 1329 (citation and
internal quotation omitted).
In Apprendi v. New Jersey, the Supreme Court held that “[o]ther than the
fact of 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). In
Blakely v. Washington, the Court held that “the ‘statutory maximum’ for Apprendi
purposes is the maximum sentence a judge may impose solely on the basis of the
facts reflected in the jury verdict or admitted by the defendant. . . . In other words,
the relevant ‘statutory maximum’ is not the maximum sentence a judge may
impose after finding additional facts, but the maximum he may impose without any
additional findings.” 542 U.S. at ___, 124 S. Ct. 2531, 2537 (2004) (citation
omitted).
After the sentencing in the instant case, the Supreme Court issued its
decision in Booker and found “no distinction of constitutional significance
between the Federal Sentencing Guidelines and the Washington procedures at
issue” in Blakely. Booker, 543 U.S. at ___, 125 S. Ct. at 749. Resolving the
constitutional question left open in Blakely, the Court held that the mandatory
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nature of the Guidelines rendered them incompatible with the Sixth Amendment’s
guarantee to the right to a jury trial. Id. at ___,125 S. Ct. at 749-51. In extending
its holding in Blakely to the Guidelines, the Court explicitly reaffirmed its rationale
in Apprendi that “[a]ny fact (other than a prior conviction) which is necessary to
support a sentence exceeding the maximum authorized by the facts established by a
plea of guilty or a jury verdict must be admitted by the defendant or proved to a
jury beyond a reasonable doubt.” Id. at ___, 125 S. Ct. at 756.
In a second and separate majority opinion in Booker, Justice Breyer
concluded that, to best preserve Congress’s intent in enacting the Sentencing
Reform Act of 1984, the appropriate remedy was to “excise” two specific
sections—18 U.S.C. § 3553(b)(1) (requiring a sentence to be within the guideline
range, absent a departure) and 18 U.S.C. § 3742(e) (establishing standards of
review on appeal, including de novo review of departures from the applicable
guideline range)—thereby effectively rendering the Sentencing Guidelines
advisory only. Id. at ___, 125 S. Ct. at 764. The Court indicated that both its
“Sixth Amendment holding and . . . remedial interpretation of the Sentencing Act”
must be applied to “all cases on direct review.” Id. at ___, 125 S. Ct. at 769.
As we have explained, there are two types of Booker errors: (1) Sixth
Amendment error based upon sentencing enhancements neither admitted by the
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defendant nor submitted to a jury and proven beyond a reasonable doubt; and (2)
statutory error based upon sentencing under a mandatory Guidelines system.
Shelton, 400 F.3d at 1329-31. In the instant case, the district court applied the
Guidelines in a mandatory fashion. However, the only enhancement applied to
Herrera’s sentence reflected a prior conviction. The Booker court specifically
indicated that only facts other than prior convictions must be admitted by the
defendant or proved to a jury beyond a reasonable doubt, 543 U.S. at ___, 125
S.Ct. at 756, and we recently held that “there is no Sixth Amendment violation
when a district court enhances a sentence based on prior convictions.” United
States v. Gallegos-Aguero, __ F.3d __, __ (11th Cir. May 18, 2005). Accordingly,
the imposition of the enhancement to reflect Herrera’s prior conviction was not
constitutional Booker error.
As to a district court’s statutory error, a defendant meets the first and second
prongs of the plain error test if the district court considered the Guidelines to be
mandatory at the time of sentencing and if the error was plain at the time of
appellate consideration. United States v. Cartwright, __ F.3d __, __ (11th Cir.
June 24, 2005). To satisfy the third prong of plain error, the defendant must
demonstrate that the error “‘affects [his] substantial rights,’ and that the error
‘actually did make a difference.’” Id. (quoting United States v. Rodriguez, 398
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F.3d 1291, 1298 (11th Cir.), cert. denied, 73 U.S.L.W. 3531 (June 20, 2005) (No.
04-1148)). In other words, the defendant must show that “‘there is a reasonable
probability of a different result if the guidelines had been applied in an advisory
instead of binding fashion . . .’” Id. (quoting Rodriguez, 398 F.3d at 1300).
In this case, the district court’s application of the Guidelines in a mandatory
fashion constituted Booker error, and the error is now plain. Id. at __. However,
we conclude that Herrera failed to satisfy the third prong of plain error. Herrera
has not shown, and the record does not indicate, that he would have received a
lesser sentence had the district court considered the Guidelines advisory as
opposed to mandatory. The court sentenced Herrera towards the upper end of the
guideline range, 23 months, and without a clear statement or sign from the district
court that it would have imposed a lighter sentence but for the fact that its
discretion was constrained under the Guidelines, we can only speculate as to the
likelihood of a different result. Herrera, therefore, has not met his burden of
showing a reasonable probability that the result of his sentencing would have been
different but for the Booker error, and we need not apply the fourth prong of the
plain error standard.
Additionally, Herrera asserts that the district court plainly erred in
determining that he qualified for an eight-level enhancement under U.S.S.G. §
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2L1.2(b)(1)(c), because nothing in his criminal history constitutes an aggravated
felony. If this enhancement was imposed to reflect his prior conviction of
“criminal possession of a weapon,” he asserts, the record fails to support the
enhancement because the government did not meet its burden of showing that the
offense qualified as a crime of violence, and none of the categories of aggravated
felonies apply to the weapon possession conviction at issue. Appellant’s Brief at
18-19. Herrera further asserts that his prior conviction for simple possession of a
controlled substance would not qualify as a “‘drug trafficking crime’” under
U.S.S.G. § 2L1.2(b)(1). Id. at 20. Because the record does not indicate which
offense the PSI relied upon in adding the eight-level enhancement, he contends, the
district court plainly erred in imposing the enhancement, and this Court should
remand for resentencing.
We review the district court’s interpretation of the Sentencing Guidelines de
novo. United States v. Simon, 168 F.3d 1271, 1272 (11th Cir. 1999). Objections
to sentencing issues that are not raised at the district court, however, are reviewed
for plain error to avoid manifest injustice. United States v. Harness, 180 F.3d
1232, 1234 (11th Cir. 1999). Because Herrera did not dispute the imposition of the
eight-level enhancement in the district court, we review for plain error.
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The government bears the burden of establishing that a sentence
enhancement is warranted. United States v. Hernandez, 145 F.3d 1433, 1440 (11th
Cir. 1998). U.S.S.G. § 2L1.2 (unlawfully entering or remaining in the United
States) is the guideline applicable to the offense of being illegally found in United
States after deportation, 8 U.S.C. § 1326. See U.S.S.G. App. A. In detailing the
applicable specific offense characteristics, § 2L1.2 indicates that if the defendant
previously was deported after a “conviction for an aggravated felony,” the base
offense level should be increased by eight levels. U.S.S.G. § 2L1.2(b)(1)(c). The
commentary to § 2L1.2 defines “aggravated felony” as it is defined in 8 U.S.C. §
1101(a)(43), which, in turn, defines “aggravated felony” as “including a drug
trafficking crime (as defined in section 924(c) of Title 18).” See U.S.S.G. § 2L1.2,
comment. (n.3(A)); 8 U.S.C. § 1101(a)(43)(B). Section 924(c)(2) defines the term
“drug trafficking crime” as including “any felony punishable under the Controlled
Substances Act (21 U.S.C. § 801 et seq.), the Controlled Substances Import and
Export Act (21 U.S.C. § 951 et seq.), or the Maritime Drug Law Enforcement Act
(46 U.S.C.App. § 1901 et seq.).” 18 U.S.C. 924(c)(2).
In Simon, we held a drug offense falls within the definition of “drug
trafficking crime” in § 924(c)(2), and thus fits within the definition of aggravated
felony, if two criteria are met: (1) the offense must be punishable under one of the
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three enumerated statutes, including the Controlled Substances Act (“CSA”); and
(2) the offense must be a felony. Simon, 168 F.3d at 1272. The CSA defines the
term “felony” as “any Federal or State offense classified by applicable Federal or
State law as a felony.” 21 U.S.C. § 802(13).
In the instant case, the district court did not plainly err in imposing the eight-
level enhancement. As Herrera argues, the record contains virtually no
information about Herrera’s previous conviction. The PSI indicated that the eight-
level enhancement was warranted under § 2L1.2(b)(1)(c), but did not specify
which of Herrera’s previous convictions justified the enhancement. On appeal, the
government explains on appeal that Herrera’s 1988 New York conviction for
criminal possession of a controlled substance constituted an aggravated felony.
The PSI referenced that conviction by indicating that Herrera was found guilty and
sentenced to four years of imprisonment for “Criminal Possession of a Controlled
Substance,” but it did not indicate which New York statute Herrera violated. PSI ¶
25.
Nevertheless, Herrera’s conviction satisfies the two criteria enumerated in
Simon. First, possession of a controlled substance is an offense punishable under
the CSA. See 21 U.S.C. § 844. Second, Herrera’s conviction was a felony under
New York law because he was sentenced to more than four years of imprisonment.
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See N.Y. PENAL LAW §§ 55.10, 70.15 (penalties for class A, class B, and
unclassified misdemeanors do not exceed one year). Accordingly, the district court
did not plainly err in applying the enhancement to Herrera’s sentence. See Simon,
168 F.3d at 1272.
In his brief, Herrera asserts that the conviction for simple possession cannot
qualify as a drug trafficking crime under U.S.S.G. § 2L1.2(b)(1). However, the
conviction was not considered a “drug trafficking offense” under § 2L1.2(b)(1)(A)
or (B), but rather an “aggravated felony” under § 2L1.2(b)(1)(c). See PSI ¶ 10.
Finally, Herrera’s reliance upon the Supreme Court’s recent decision in Shepard,
__ U.S. __, 125 S. Ct. 1254, is misplaced. In Shepard, the Supreme Court held that
a district court considering prior convictions for the purpose of sentencing a
defendant under 18 U.S.C. § 924(e), the career criminal provision, could look to
statutory elements, charging documents, and jury instructions, but not to police
reports or complaint applications, to determine whether an earlier conviction
qualified as a violent felony. Shepard, __ U.S. at __, 125 S. Ct. at 1257. In the
instant case, the district court did not consider any documents that the Supreme
Court deemed to be inappropriate, because, as discussed above, the fact that
Herrera’s previous conviction qualified as an “aggravated felony” for purposes of §
2L1.2 was evident from the nature of the offense and the duration of his
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imprisonment. Accordingly, the district court did not plainly err in imposing an
eight-level enhancement under § 2L1.2(b)(1)(c).
III. CONCLUSION
While the application of the Guidelines by the sentencing court was done in
a mandatory fashion constituting statutory Booker error, Herrera has failed to
demonstrate a reasonable probability that his sentence would have been different
but for such error. Moreover, a review of the record demonstrates that the
sentencing court did not err in imposing an eight-level enhancement under §
2L1.2(b)(1)(c). Accordingly, we AFFIRM.
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