[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
June 8, 2005
No. 04-13961 THOMAS K. KAHN
CLERK
Non-Argument Calendar
________________________
D.C. Docket No. 04-00004-CR-FTM-29SPC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT R. CURTIS,
a.k.a. Play,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Middle District of Florida
_________________________
(June 8, 2005)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Robert R. Curtis appeals his 169-month sentence for the distribution of
cocaine base, in violation of 21 U.S.C. § 841. Curtis entered a guilty plea without
a plea agreement, which the district court accepted. At sentencing, the court
calculated Curtis’s base offense level on the basis of (1) his three prior convictions
for the sale of cocaine, which qualified him for career offender status under
U.S.S.G. § 4B1.1, and (2) the fact that Curtis’s instant offense of conviction
carried a maximum sentence of 20 years. See U.S.S.G. § 4B1.1(b) (instructing that
the offense level be set at the greater of either the offense level for a career
offender under § 4B1.1 or the offense level otherwise applicable).
Curtis argued at sentencing that Blakely v. Washington prohibits federal
courts from sentencing defendants based on uncharged relevant conduct that is
neither stipulated to by the defendant nor proven to a jury beyond a reasonable
doubt. See 542 U.S. ___, 124 S. Ct. 2531 (2004). Thus, he argues, the guideline
provisions that allow for such enhancements are unconstitutional. Curtis further
argues that the reasoning behind exempting prior convictions from the holding in
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and
Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998), has
been undermined by subsequent cases. Curtis thus claims that even if the fact of a
prior conviction is exempted from the Blakely rule, the career offender provision
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in U.S.S.G. § 4B1.1 does not survive constitutional scrutiny because his sentence
was increased based on additional facts that were not charged in the indictment or
stipulated to at the plea hearing. The facts with which he takes issue are: (1) he
was at least 18 years old when he committed the instant offense, (2) the instant
offense was a felony involving a controlled substance, and (3) Curtis had two prior
felony convictions that were either crimes of violence or controlled substance
offenses. Curtis also argues that, apart from his sentencing enhancement, the
sentencing court erroneously believed that it had no authority to impose a lesser
sentence than the guidelines required and, thus, sentenced Curtis under an
incorrect legal standard.
In the post-Booker era, we have explained that there are two types of Booker
error: (1) a Sixth Amendment error–that is, imposing a sentencing enhancement
based on judicial findings that go beyond the facts admitted by the defendant or
found by the jury, and (2) statutory error–being sentenced under a sentencing
guidelines scheme that is mandatory. United States v. Shelton, 400 F.3d 1325,
1330–31 (11th Cir. 2005).
A. Sixth Amendment Error
U.S.S.G. § 4B1.1(a) states: “A defendant is a career offender if (1) the
defendant was at least eighteen years old at the time the defendant committed the
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instant offense of conviction; (2) the instant offense of conviction is a felony that
is either a crime of violence or a controlled substance offense; and (3) the
defendant has at least two prior felony convictions of either a crime of violence or
a controlled substance offense.” If a court finds a defendant to be a career
offender under § 4B1.1(a), the defendant’s offense level is enhanced under
§ 4B1.1(b). See U.S.S.G. § 4B1.1(b) (setting the base offense level at the greater
of either the offense level for a career offender under § 4B1.1 or the offense level
otherwise applicable).
In Booker, 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.” United States v.
Orduno-Mireles, No. 04-12630, slip op. at 1792 (11th Cir. Apr. 6, 2005); see also
United States v. Camacho-Ibarquen, 404 F.3d 1283, 1290 (11th Cir. 2005).
Moreover, the Court reaffirmed Apprendi’s holding 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.”
Orduno-Mireles, No. 04-12630, slip op. at 1792. Accordingly, in Orduno-Mireles
we observed that “the Court’s holding in Booker . . . is not implicated when a
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defendant’s sentence is enhanced based on a prior conviction.” Id.; see also
United States v. Marseille, 377 F.3d 1249, 1257 (11th Cir. 2004).
Because Almendarez-Torres remains good law, the sentencing court did not
err in finding that Curtis should receive an enhancement pursuant to § 4B1.1 as a
career offender based on his prior convictions.
To the extent that the Supreme Court’s recent decision in Shepard arguably
undermined Almendarez-Torres, that decision does not undermine our outcome
here. See Shepard v. United States, __ U.S. __, 125 S. Ct. 1254 (2005). Curtis
stated at sentencing that he had “no factual objections” to the presentence
investigation report. Therefore, the sentencing court did not resolve disputed
facts, but based its sentence on admitted facts. See Shepard, 125 S.Ct. at 1263;
see also United States v. Burge, No. 04-13468, manuscript op. at 17 (11th Cir.
May 2, 2005) (noting that the defendant had waived his objections to the factual
statements in the presentence investigation report and, therefore, had “admitted”
those facts). Moreover, there is no doubt that the prior offenses, of which there
were many more than the two required, were felonies involving controlled
substances. Suffice it to say that, in this case, we are not presented with an
opportunity to determine the implications and reach of Shepard. Thus, we
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conclude that the district court’s use of prior convictions to enhance Curtis’s
sentence did not violate the Sixth Amendment.
B. Statutory Error
Due to the nature of the Supreme Court’s Booker remedy, we have
concluded that a district court has committed Booker error whenever it sentences a
defendant under a mandatory guidelines scheme, even in the absence of a Sixth
Amendment error. Shelton, 400 F.3d at 1330–31.
Next we consider whether the error was harmless. When an error is
nonconstitutional, it is harmless if it does not affect the substantial rights of the
parties. See 28 U.S.C. § 2111; United States v. Guzman, 167 F.3d 1350, 1353
(11th Cir. 1999). “[A] nonconstitutional error requires reversal only if it resulted
in actual prejudice because it had substantial and injurious effect.” Guzman, 167
F.3d at 1353 (internal quotations and citation omitted). The government bears the
burden of showing that the error did not affect Curtis’s substantial rights. United
States v. Hernandez, 160 F.3d 661, 670 (11th Cir. 1998). The government has met
its burden.
First, the district court imposed a sentence in the middle of the guidelines
range. The court could have sentenced Curtis to a sentence on the low end of the
spectrum, but did not do so. Second, the court could have departed from the
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guidelines pursuant to U.S.S.G. § 4A1.3, but declined defense counsel’s invitation
to do so. When defense counsel asked the court to find that Curtis’s criminal
history category overrepresented his actual criminal history, which counsel
characterized as “consistent with somebody who is simply trying to support their
own habit,” the court declined. Citing the pattern of criminal activity beginning in
1984 and progressing since then, the court denied defense counsel’s motion to
depart downward. The record establishes that, even though the district court
committed statutory Booker error, that error was harmless because it did not have a
substantial and injurious effect on Curtis’s sentence.
For the foregoing reasons, we affirm the district court’s sentence.
AFFIRMED.
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