[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
May 20, 2005
No. 04-13829 THOMAS K. KAHN
CLERK
Non-Argument Calendar
________________________
D.C. Docket No. 03-60289-CR-KAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee-
Cross-Appellant,
versus
ALLAN CABRERA-RUIZ,
Defendant-Appellant-
Cross-Appellee.
__________________________
Appeals from the United States District Court for the
Southern District of Florida
_________________________
(May 20, 2005)
Before ANDERSON, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
Allan Cabrera-Ruiz appeals his sentence for illegal reentry into the United
States, in violation of 8 U.S.C. § 1326(a) and (b)(2). Cabrera-Ruiz asserts the
district court erred in (1) enhancing his sentence based on facts not alleged in the
indictment or found by the jury, and (2) determining his state court conviction for
delivery of cannabis was an aggravated felony. The Government cross-appeals,
contending the district court erred in determining Cabrera-Ruiz’s prior drug
trafficking conviction was the only prior conviction that could be used to support a
sentencing enhancement under U.S.S.G. § 2L1.2(b)(1). We vacate and remand for
resentencing.
I. DISCUSSION
A. Enhancement Issues
Cabrera-Ruiz asserts his Fifth and Sixth Amendment rights were violated,
pursuant to Blakely v. Washington, 124 S. Ct. 2531 (2004), when the district court
enhanced his sentence based on facts neither charged in the indictment nor found
by a jury beyond a reasonable doubt. Because Cabrera-Ruiz argued in his
objections to the PSI and at sentencing that the district court violated his Fifth and
Sixth Amendment rights under Blakely, he raised a timely constitutional objection
and is entitled to preserved error review. See United States v. Candelario, 240
F.3d 1300, 1306 (11th Cir. 2001). We review preserved constitutional errors de
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novo, but “will reverse only for harmful error.” See United States v. Sanchez, 269
F.3d 1250, 1272 (11th Cir. 2001) (en banc).
1. Statutory Enhancement
8 U.S.C. § 1326(b)(2) provides for a maximum sentence of 20 years’
imprisonment for illegal reentry if a defendant was deported subsequent to being
convicted of an aggravated felony. On the other hand, a defendant who was not
deported subsequent to being convicted of an aggravated felony, and who does not
satisfy any of the other requirements justifying an enhanced penalty under
§ 1326(b), is subject to a maximum of two years’ imprisonment. 8 U.S.C.
§ 1326(a). Cabrera-Ruiz argues his prior aggravated felony conviction, which
subjected him to the enhanced sentence of 8 U.S.C. § 1326(b)(2), was neither
alleged in the indictment nor proven to a jury beyond a reasonable doubt, thus
violating the Fifth and Sixth Amendments.
The Supreme Court determined an indictment in an illegal reentry case does
not have to allege a defendant’s prior aggravated felony conviction for a court to
impose an enhanced sentence under § 1326(b). Almendarez-Torres v. United
States, 118 S. Ct. 1219, 1232–33 (1998). Here, the indictment charged Cabrera-
Ruiz with illegal reentry after deportation, without alleging the fact he previously
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had been deported following a conviction for an aggravated felony.1 However, the
indictment does not have to allege a defendant’s prior aggravated-felony
conviction for a court to impose an enhanced sentence under § 1326(b)(2). See id.
Accordingly, the district court did not err when it imposed a statutory sentence
above the two-year statutory maximum sentence for § 1326(a) offenses.
2. Guidelines Enhancement
Further, Cabrera-Ruiz claims the court violated his constitutional rights by
sentencing him under U.S.S.G. § 2L1.2(b)(1)(B) because the conviction the court
relied on in imposing this enhancement was neither alleged in the indictment nor
proven beyond a reasonable doubt. U.S.S.G. § 2L1.2(b)(1)(B) provides “[i]f the
defendant previously was deported, or unlawfully remained in the United States
after—a conviction for a felony drug trafficking offense for which the sentence
imposed was 13 months or less,” the base offense level is increased 12 levels.
Subsequent to the parties filing their briefs in this appeal, the Supreme
Court concluded its holding in Blakely applied to the Federal Sentencing
Guidelines. United States v. Booker, 125 S. Ct. 738, 755 (2005). In discussing
this holding, however, the Court reaffirmed its holding in Apprendi v. New Jersey,
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The indictment, however, did allege that Cabrera-Ruiz’s reentry following deportation was
in violation of 8 U.S.C. § 1326(a) and (b)(2).
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120 S. Ct. 2348 (2000), 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.” Booker, 125 S. Ct. at 756.
Accordingly, insofar as the district court’s enhancement of Cabrera-Ruiz’s
sentence under § 2L1.2(b)(1)(B) merely involved a determination that Cabrera-
Ruiz had prior convictions, the enhancement did not implicate Apprendi, Blakely,
or Booker, as those cases exempt prior convictions from the types of facts that
must be admitted by the defendant or proved to a jury beyond a reasonable doubt
in order to support a sentence enhancement.
There is a potential Booker error in this case, however, because the district
court sentenced Cabrera-Ruiz under a mandatory Guidelines system. See United
States v. Shelton, 400 F.3d 1325, 1330–31 (2005) (“[T]he Supreme Court has now
excised the mandatory nature of the Guidelines in Booker. Thus, we conclude it
was Booker error for the district court to sentence Shelton under a mandatory
Guidelines scheme, even in the absence of a Sixth Amendment enhancement
violation.”). Because this case is being vacated and remanded for resentencing on
another issue, however, we do not address this issue.
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B. Aggravated Felony
Cabrera-Ruiz next contends the district court erred in determining his
conviction for delivery of cannabis was an aggravated felony. We review de novo
the district court’s interpretation of the Sentencing Guidelines. United States v.
Simon, 168 F.3d 1271, 1272 (11th Cir. 1999).
A defendant who was removed subsequent to a conviction for an aggravated
felony is subject to a 20-year statutory maximum sentence. 8 U.S.C. § 1326(b)(2).
The Code states an aggravated felony means “illicit trafficking in a controlled
substance.” 8 U.S.C. § 1101(a)(43)(B). We have stated a state felony drug
offense could qualify as an aggravated felony even though that same offense
would not be a felony under the federal drug statutes. Simon, 168 F.3d at 1272.
The Florida Supreme Court has stated delivery of cannabis is a third degree felony
under Florida law. See Parker v. Florida, 406 So. 2d 1089, 1091 (Fla. 1981).
Cabrera-Ruiz was convicted of a state court drug trafficking felony, delivery
of cannabis, and that conviction can qualify as an aggravated felony even though it
is not an aggravated felony under federal law. See Simon, 168 F.3d at 1272;
Parker, 406 So. 2d at 1091. Accordingly, the district court did not err in
determining his conviction was an aggravated felony for purposes of 8 U.S.C.
§ 1326(b)(2).
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C. Government’s Cross Appeal
The Government contends the district court erred in determining the
conviction used to support the application of 8 U.S.C. § 1326(b)(2) was the only
prior conviction that could be used to support an enhancement under U.S.S.G.
§ 2L1.2(b). Section 1326(b)(2) provides an alien whose removal was subsequent
to a conviction for an aggravated felony shall not be imprisoned for more than 20
years. Under the Immigration and Nationality Act, the term “aggravated felony”
includes, in relevant part, a drug trafficking offense, or a crime of violence for
which the term of imprisonment was at least one year. 8 U.S.C. § 1101(a)(43)(B),
(F).
The Sentencing Guidelines provide for a base offense level of 8 for a
conviction under § 1326(a). U.S.S.G. § 2L1.2(a). The Guidelines further provide
if the defendant was previously deported after a conviction for a felony that is “a
drug trafficking offense for which the sentence imposed exceeded 13 months,” or
“a crime of violence,” the offense level should be increased by 16 levels, and “a
conviction for a felony drug trafficking offense for which the sentence imposed
was 13 months or less,” the offense level should be increased by 12 levels.
U.S.S.G. § 2L1.2(b)(1)(A)(i), (ii), (B). The Application Notes define a crime of
violence, in relevant part, as aggravated assault, and define a drug trafficking
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offense as “an offense under federal, state, or local law that prohibits the
manufacture, import, export, distribution, or dispensing of a controlled substance.”
U.S.S.G. § 2L1.2, comment. (n.1(B)(iii),(iv)).
As discussed above, Cabrera-Ruiz’s conviction for delivery of cannabis is
an aggravated felony for purposes of establishing § 1326(b)(2). See 8 U.S.C.
§ 1101(a)(43)(B). Cabrera-Ruiz’s conviction for aggravated battery is not an
aggravated felony, for purposes of § 1326(b)(2), as he only served a nine-month
sentence which did not meet the one year requirement of § 1101(a)(43)(F). Thus,
Cabrera-Ruiz’s conviction for delivery of cannabis is the only conviction that
invokes the § 1326(b)(2) statutory maximum of 20 years. See 8 U.S.C.
§ 1101(a)(43)(F).
Under the Guidelines, the delivery of cannabis conviction, for which
Cabrera-Ruiz received a four month sentence, does not meet the requirements for a
16-level increase, but does meet the requirements for a 12-level increase. See
U.S.S.G. § 2L1.2(b)(1)(A), (B). However, Cabrera-Ruiz’s conviction for
aggravated battery is a crime of violence, such that the 16-level increase would
apply. See U.S.S.G. § 2L1.2(b)(1)(A)(ii), comment. (n.1(B)(iii)).
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The issue then becomes whether the conviction used to enhance a
defendant’s sentence under § 2L1.2(b)(1)(A) needs to be the same conviction that
invokes the penalty provision in § 1326(b)(2). We have held that:
[Section] 2L1.2 is not dependent upon 8 U.S.C. § 1326 and that a
previous offense may be an “aggravated felony” for the purpose of
the 16-level enhancement in the guideline while not qualifying for the
statutory enhancement at 8 U.S.C. § 1326(b)(2). . . . While we agree
that there is a difference between the definitions of “aggravated
felony,” that difference does not cause a conflict between the statute
and the guideline or create an ambiguity as to what sentence applies
to a conviction under 8 U.S.C. § 1326.
United States v. Lazo-Ortiz, 136 F.3d 1282, 1285 (11th Cir. 1998). Therefore,
Cabrera-Ruiz’s conviction for delivery of cannabis, a felony drug trafficking
crime, could be used to invoke the § 1326(b)(2) penalty provision, while his
conviction for aggravated battery, a crime of violence, could be used to enhance
his sentence by 16 levels under § 2L1.2(b)(1)(A)(ii). Accordingly, the district
court erred in concluding that Cabrera-Ruiz’s conviction for delivery of cannabis
was the only conviction that would determine the level of enhancement he would
receive under the Guidelines.
II. CONCLUSION
The district court did not err in enhancing Cabrera-Ruiz’s sentence under
the statute or the Guidelines based on his past convictions. The district court also
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did not err in determining his state court conviction for delivery of cannabis was
an aggravated felony. The district court erred, however, in its application of
U.S.S.G. § 2L1.2(b) based on its belief the conviction used to support the
enhanced penalty provision under 8 U.S.C. § 1326(b)(2) was the only prior
conviction that could be used to support a sentencing enhancement under U.S.S.G.
§ 2L1.2(b). We thus vacate and remand for resentencing. On remand, the district
court should treat the Sentencing Guidelines as advisory as mandated by Booker.
VACATED AND REMANDED.
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