[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DECEMBER 13, 2006
No. 06-11515 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-20768-CR-AJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS ALBERTO MARTINEZ-ZAPATA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 13, 2006)
Before DUBINA, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:
Carlos Alberto Martinez-Zapata (“Zapata”) pleaded guilty to illegal re-entry,
in violation of 8 U.S.C. § 1326, after he was found in the United States having
been deported twice previously. The statutory maximum sentence for his offense
was 20 years imprisonment.
Calculating the sentencing guidelines range, the probation officer assigned a
base offense level of 8 under U.S.S.G. § 2L1.2, with a 16-level enhancement,
§ 2L1.2(b)(1)(A), because Zapata had a prior conviction for trafficking cocaine.
With a 2-level reduction for acceptance of responsibility, the adjusted offense level
was 21. Zapata had a criminal history category IV, resulting in a guidelines range
of 57 to 71 months imprisonment.
Zapata made no objections to the calculations, but requested that the court
sentence him below the range because his criminal history category over-
represented his past and a lesser sentence would be sufficient deterrence.
Recognizing that the guidelines were advisory, and considering the sentencing
factors in 18 U.S.C. § 3553(a), the district court sentenced Zapata to 57 months
imprisonment. Zapata now appeals, challenging the 16-level enhancement under
the Fifth and Sixth Amendments because the prior conviction was not charged in
the indictment or admitted at the plea colloquy.
Because Zapata raises this issue for the first time on appeal, we review for
plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert.
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denied, 545 U.S. 1127 (2005). Thus, Zapata must show (1) there is an error;
(2) that is plain or obvious; (3) affecting the defendant’s substantial rights in that it
was prejudicial and not harmless; and (4) that seriously affects the fairness,
integrity, or public reputation of the judicial proceedings. Id.
Zapata cannot show plain error. First, this court has rejected the argument
that prior convictions under § 2L1.2(b)(1)(A) must be alleged in the indictment.
United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315-16 (11th Cir. 2005).
Moreover, as Zapata concedes, Almendarez-Torres v. United States, 523 U.S. 224
(1998), holding that prior convictions need not be charged in an indictment or
proven beyond a reasonable doubt, remains good law. Id.
Second, by not objecting to the presentence investigation report, Zapata
admitted the facts contained therein, including his prior conviction. United States
v. Wade, 458 F.3d 1273, 1277 (11th Cir.), petition for cert. filed, (Nov. 01, 2006)
(No. 06-7622).
Finally, there is no error under United States v. Booker, 543 U.S. 220
(2005), as Zapata was not sentenced under a mandatory guidelines scheme.
Accordingly, we AFFIRM.
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