[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-13982
JUNE 10, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 04-60069-CR-KAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAMUEL MORENO HURTADO,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 10, 2005)
Before DUBINA, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Appellant Samuel Moreno Hurtado appeals his 46-month sentence imposed
after pleading guilty to one count of illegal reentry of a previously deported alien,
in violation of 8 U.S.C. §§ 1326(a). The district court enhanced Hurtado’s
sentence pursuant to U.S.S.G. § 2L1.2(b)(1)(A) based on prior felony convictions
for drug trafficking offenses for which the sentence imposed exceeded 13 months.
On appeal, Hurtado argues that, in light of Blakely v. Washington, 542 U.S.
__, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the district court violated his Fifth
and Sixth Amendment rights in enhancing his sentence based on the fact of
Hurtado’s prior felony convictions for drug trafficking offenses for which the
sentence imposed exceeded 13 months, where that fact was found by the district
court and not charged in the indictment, proved to a jury beyond a reasonable
doubt, or expressly admitted by Hurtado. Hurtado concedes that he admitted the
fact of his two convictions for drug trafficking offenses during his plea colloquy
but contends that he did not admit to the fact that the convictions were for
“felonies” or that the sentence imposed exceeded 13 months. Hurtado also argues
that this Court’s decision in United States v. Marseille, 377 F.3d 1249 (11th Cir.
2004), which held that Blakely did not take findings of prior convictions out of the
hands of the courts, was distinguishable in that Hurtado’s prior convictions had
not been charged in his indictment, in violation of his Fifth Amendment rights.
Hurtado further argues that the Supreme Court’s decision in Almendarez-Torres v.
United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed 2d 350 (1998), should not
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apply here because it has been “gravely wounded” by subsequent decisions and
has been applied only to situations where only the fact of a prior conviction is at
issue, not to situations where additional facts, such as whether the conviction
resulted in a sentence which exceeded 13 months, are at issue. Hurtado also filed
two letters of supplemental authority pursuant to Fed.R.App.P. 28(j). In the first
letter, Hurtado cites to United States v. Booker, 543 U.S. __, 125 S.Ct. 738, 160
L.Ed.2d 621 (2005), and argues that the district court erred by applying the
guidelines in a mandatory fashion. In the second letter, Hurtado cites to Shepard
v. United States, __ U.S. __, 125 S.Ct. 1254, __ L.Ed.2d __ (2005), and argues
that the district court erred under Shepard in determining facts “about a prior
conviction,” as opposed to a “fact of a prior conviction.”
We review a defendant’s preserved constitutional challenges to his sentence
de novo but will reverse and remand only for harmful error. See United States v.
Paz, ___ F.3d ___, No. 04-14829 (11th Cir. Apr. 5, 2005) (holding that this Court
reviews a Booker issue de novo where the defendant objected in the district court
to sentence enhancements based on facts not found by a jury nor admitted by the
defendant). We further explained in Paz as follows:
A constitutional error, such as a Booker error, must be disregarded as not
affecting substantial rights, if the error is harmless beyond a reasonable
doubt. This standard is only met where it is clear beyond a reasonable
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doubt that the error complained of did not contribute to the sentence
obtained. The burden is on the government to show that the error did not
affect the defendant’s substantial rights.
Paz, ___ F.3d at ___ (internal quotations and marks omitted and citations
omitted).
U.S.S.G. § 2L1.2(b)(1)(A) 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 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 Almendarez-Torres v. United States, the Supreme Court held 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.” United States v.
Marseille, 377 F.3d at 1257.
In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63,
147 L.Ed.2d 435 (2000) (emphasis added), the Supreme Court declined to revisit
Almendarez-Torres and 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.”
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In Marseille, we refused to interpret the Supreme Court’s rationale in
Apprendi as overruling the prior Supreme Court decision in Almendarez-Torres.
377 F.3d at 1257. We further concluded that Blakely “does not take such
fact-finding out of the hands of the courts.” Id. at 1257-58 n.14; see also United
States v. Guadamuz-Solis, 232 F.3d 1363 (11th Cir. 2000) (holding that
Almendarez-Torres remains the law after Apprendi).
In Booker, the Supreme Court concluded that its holding in Blakely applied
to the Federal Sentencing Guidelines, and it reaffirmed its holding in Apprendi:
“Any 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.” 543 U.S. at ___, 125 S.Ct. at 756.
We have recently 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). We noted that
while recent decisions, including Shepard, may arguably cast doubt on the future
prospects of Almendarez-Torres, the Supreme Court has not explicitly overruled
Almendarez-Torres and, as a result, we must follow Almendarez-Torres. United
States v. Camacho-Ibarquen, ___ F.3d ___, No. 04-11155, (11th Cir. Mar. 30,
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2005). In Camacho-Ibarquen, we further held that a defendant’s Sixth
Amendment rights are not violated when his sentence is enhanced under
§ 2L1.2(b)(1)(A) based on a prior conviction. Camacho-Ibarquen, ___ F.3d at
___; see also United States v. Orduno-Mireles, ___ F.3d ___, No. 04-12630 (11th
Cir. Apr. 6, 2005) (same).
However, a district court commits Booker error, even in the absence of a
Sixth Amendment enhancement violation, when it misapplies the guidelines by
considering them as binding as opposed to advisory. Orduno-Mireles, ___ F.3d at
___ (citing to Shelton, 400 F.3d at 1330-31).
Because the rules announced in Apprendi, Blakely, and Booker, by their
express terms, do not apply to the fact of “a prior conviction,” we conclude that
the Booker holding, by implication, does not require that prior convictions be
charged in the indictment, found by the jury beyond a reasonable doubt or
admitted by the defendant. Moreover, in Marseille, we noted that until the
Supreme Court holds otherwise, Almendarez-Torres remains good law. Marseille,
377 F.3d at 1257. The Supreme Court decisions in Apprendi, Blakely, and Booker
have not overruled its holding in Almendarez-Torres that prior convictions may be
considered in enhancing sentences. See Shelton, 400 F.3d at 1329. Thus, after
Booker, a judge still is able to impose enhancements on the basis of a defendant’s
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prior convictions, and there is no Sixth Amendment violation. See
Camacho-Ibarquen, ___ F.3d at ___.
Even so, Hurtado argues that the district court’s enhancement of his
sentence under § 2L1.2 involved more than a mere finding of the fact of a prior
conviction. Rather, Hurtado asserts that the enhancement involved a further
determination as to whether his prior convictions were felony convictions for
which the sentence imposed exceeded 13 months. In Marseille, we reviewed a
similar argument that the district court improperly enhanced the defendant’s
sentence under 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4, based on his four prior
convictions for violent and drug-related felonies that were not alleged in the
indictment, and refused to interpret the Supreme Court’s rationale in Apprendi as
overruling the prior Supreme Court decision in Almendarez-Torres. 377 F.3d at
1257. Thus, we explicitly considered a similar argument and rejected it,
concluding that Blakely “does not take such fact-finding out of the hands of the
courts.” Id. at 1257-58 n. 14. To the extent there is such a distinction, Hurtado
did not object to the PSI’s description of the relevant prior convictions, and, thus,
this fact is deemed “admitted” for Booker purposes. See Shelton, 400 F.3d at
1330.
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Further, Hurtado’s argument that Shepard draws a distinction, for Sixth
Amendment purposes, between the “fact of a prior conviction” and a “fact about a
prior conviction” is without merit. The portion of the decision containing that
language is from the plurality portion of the opinion; because Justice Thomas
dissented from that portion of the opinion, it is not part of the majority opinion and
is, therefore, not binding. See Shepard, __ U.S. at __, 125 S.Ct. at 1262-63. Thus,
while Shepard arguably casts doubt on the future prospects of
Almendarez-Torres, the Supreme Court has not explicitly overruled
Almendarez-Torres and, as a result, we must follow Almendarez-Torres. See
Camacho-Ibarquen, ___ F.3d at ___.
We, therefore, conclude that the district court did not violate Hurtado’s
Sixth Amendment rights. However, the record demonstrates that the district court
specifically stated that it was “obligated to apply the guideline and the 16-level
enhancement in this case.” The district court, then, sentenced Hurtado under a
mandatory guidelines scheme, and, therefore, we conclude that the court
committed Booker statutory error. See Orduno-Mireles, ___ F.3d at ___ (citing to
Shelton, 400 F.3d at 1330-31).
We, then, must determine whether this Booker error was harmless beyond a
reasonable doubt. See Paz, ___ F.3d at ___. The government has not made such a
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showing. Rather, the government argues only that there was no error under United
States v. Reese, 382 F.3d 1308 (11th Cir. 2004), and Almendarez-Torres.
Looking to the record, it is not clear beyond a reasonable doubt that the
error was harmless. See Paz, ___ F.3d at ___. The district court overruled
Hurtado’s Blakely objection to the enhancement, finding that Almendarez-Torres
was still the law of this circuit and that it was “obligated” to apply the guidelines.
There is no indication from the sentencing court that it would have imposed the
same sentence had it used the guidelines in an advisory fashion. Rather, in
sentencing Hurtado at the lowest end of the guidelines and noting that it was
obligated to apply the guidelines, the court implicitly indicated that it may have
sentenced differently had it used the guidelines in an advisory fashion. Because it
is not clear beyond a reasonable doubt that the error was harmless, Hurtado must
be resentenced under the advisory guidelines system. See Paz, ___ F.3d at ___.
On remand, the district court, “while not bound to apply the Guidelines, must
consult those Guidelines and take them into account when sentencing.” Booker,
543 U.S. at __, 125 S.Ct. at 767.
In sum, we conclude that the district court did not violate Hurtado’s Sixth
Amendment rights in enhancing Hurtado’s sentence under § 2L1.2 because the
district court’s determination that Hurtado had prior convictions did not implicate
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Apprendi, Blakely, or Booker, and the determination, that his prior convictions
were for felonies that are drug trafficking offenses for which the sentence imposed
exceeded 13 months, has not been taken out of the hands of the courts. However,
because the district court sentenced Hurtado under a mandatory guidelines
scheme, the court committed Booker statutory error. Because it is not clear from
the record, beyond a reasonable doubt, that the error is harmless, Hurtado should
be resentenced under the advisory guidelines system. Accordingly, we vacate
Hurtado’s sentence and remand this case for resentencing consistent with this
opinion.
VACATED AND REMANDED.
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