[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 23, 2005
No. 04-15489
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20235-CR-JAL
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUSTAVO DE LA CRUZ-PEREZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 23, 2005)
Before HULL, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
We withdraw our previous opinion and substitute this opinion in its place.
Gustavo De La Cruz-Perez appeals his 24-month concurrent sentences for
unlawful re-entry after deportation, in violation of 8 U.S.C. section 1326(a) and
(b)(2), and fraud and misuse of visas, permits, and other documents, in violation of
18 U.S.C. section 1546. Cruz-Perez argues that the district court erred under
United States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005), both by increasing
Cruz-Perez’s sentence based on previous felony drug convictions, and by treating
the Sentencing Guidelines as mandatory instead of applying them in an advisory
fashion. Because Booker does not apply to the use of previous convictions in
sentencing and any error in the use of the Guidelines in a mandatory fashion was
harmless, we affirm the district court.
Cruz-Perez pleaded guilty to both crimes. During Cruz-Perez’s sentencing
hearing, the district court applied a twelve-level enhancement for a previous felony
conviction for drug trafficking. Cruz-Perez objected to the enhancement and
argued that the court violated the Fifth and Sixth Amendments, under Blakely v.
Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), because the previous
conviction had neither been admitted by Cruz-Perez nor found by a jury, and had
not been included in the indictment. The district court overruled the objection,
sentenced Cruz-Perez to 24 months’ imprisonment, and stated that the sentence
would be the same if the Supreme Court held that Blakely applied to the
Sentencing Guidelines. Cruz-Perez appealed.
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Cruz-Perez argues that, under Blakely, the district court violated the Fifth
and Sixth Amendment by increasing his sentence because of a previous conviction
he had not admitted and that was not included in the indictment, and that we should
remand for Cruz-Perez to be sentenced under the Guidelines without the twelve-
level enhancement. This argument fails. In Almendarez-Torres v. United States,
523 U.S. 224, 118 S. Ct. 1219 (1998), 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. This conclusion was left
undisturbed by Apprendi, Blakely, and Booker.” United States v. Shelton, 400
F.3d 1325, 1329 (11th Cir. 2005). We concluded that “a district court does not err
by relying on prior convictions to enhance a defendant’s sentence.” Id.
Cruz-Perez also argued that, even if Booker did not apply to the use of
previous convictions in sentencing, the district court violated Booker by finding
that his previous conviction was a drug-trafficking felony. This argument also
fails. In Shelton, we held that, under Almendarez-Torres, the district court did not
err when it increased Shelton’s sentence based on three previous crimes that were
drug-related.. Id. at 1327, 1329. We made no distinction between finding a
previous conviction, and finding a previous conviction to be drug-related. Id. In
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United States v. Orduno-Mireles, we held that, under Almendarez-Torres, the
district court did not err when it increased Orduno-Mireles’s sentence based on a
previous conviction that the court found to be a crime of violence. No. 04-12630,
slip op. at 6 n.3 (11th Cir. April 6, 2005). We held that the district court did not
resolve “disputed facts related to the prior conviction which were not adjudicated
in the prior proceeding.” Id. Because the district court did not resolve disputed
facts related to Cruz-Perez’s previous conviction that were not adjudicated in his
previous proceeding, the district court did not err by finding that Cruz-Perez’s
previous conviction was a drug-trafficking felony.
Cruz-Perez also argues that, under Booker, the district court erred when it
treated the Guidelines as mandatory during sentencing. It is “Booker error for the
district court to sentence [a prisoner] under a mandatory Guidelines scheme, even
in the absence of a Sixth Amendment enhancement violation.” Id. at 1330-31. We
must disregard this error, however, if the error was harmless. Fed. R. Crim. P.
52(a).
“To find harmless error, we must determine that the error did not affect the
substantial rights of the parties.” United States v. Hernandez, 160 F.3d 661, 670
(11th Cir. 1998). Because the district court did not violate the Sixth Amendment,
the only error was the statutory error of applying the Guidelines as mandatory.
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That error is “harmless if, viewing the proceedings in their entirety, a court
determines that the error did not affect the [sentence], ‘or had but very slight
effect.’ If one can say ‘with fair assurance ... that the [sentence] was not
substantially swayed by the error,’ the [sentence] is due to be affirmed even though
there was error.” United States v. Hornaday, 392 F.3d 1306, 1315-16 (11th Cir.
2004) (citations omitted) (quoting Kotteakos v. United States, 328 U.S. 750, 762,
66 S. Ct. 1239, 1248 (1946)). We recently held that, where a district court
explained that it would have imposed the same sentence even if the Guidelines did
not apply, the error was harmless even under the more stringent “harmless beyond
a reasonable doubt” standard for constitutional error. United States v. Robles, ___
F.3d ___, 2005 WL 1083487 (11th Cir. May 10, 2005). The district court stated
that even if the Supreme Court applied “the Blakely rationale” to the Guidelines,
Cruz-Perez’s sentence would have been the same. The Booker error was,
therefore, harmless.
AFFIRMED.
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