[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 05-10654 ELEVENTH CIRCUIT
FEBRUARY 1, 2006
Non-Argument Calendar
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 04-00366-CR-T-30-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO CARLOS-SANTOS,
a. k. a. Antonio Carlos,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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Before EDMONDSON, Chief Judge, HULL and WILSON, Circuit Judges.
PER CURIAM:
Defendant-Appellant Antonio Carlos-Santos appeals his 77-month sentence
imposed after he pled guilty to illegal reentry of a previously deported alien, in
violation of 8 U.S.C. § 1326(a), (b)(2). The district court applied a 16-level
offense level enhancement, under U.S.S.G. § 2L1.2(b)(1)(A), because Defendant
had been deported after earlier convictions for alien smuggling and for carrying a
concealed firearm. No reversible error has been shown; we affirm.
Defendant acknowledges that he brings this appeal only to preserve an
argument that Almendarez-Torres v. United States, 118 S.Ct. 1219 (1998), was
decided wrongly in the light of Apprendi v. New Jersey, 120 S.Ct. 2348 (2000),
Blakely v. Washington, 124 S.Ct. 2531 (2004), and United States v. Booker, 125
S.Ct. 738 (2005).1 And he maintains that his case is distinguishable from
Almendarez-Torres. First, he did not stipulate to his earlier convictions at the
guilty plea hearing: he asserts that his convictions needed to be admitted by him or
proved to a jury beyond a reasonable doubt. Second, he contends that he did not
admit to the characterization of his earlier conviction for conspiracy to transport
aliens as an “alien smuggling” offense under U.S.S.G. § 2L1.2(b)(1)(A)(vii).
1
Defendant’s sentencing hearing took place 16 days after Booker was decided. The district court
applied the Sentencing Guidelines as advisory.
2
Defendant concedes that he did not raise these arguments in the district
court: we review for plain error. See United States v. Rodriguez, 398 F.3d 1291,
1298 (11th Cir.), cert. denied, 125 S.Ct. 2935 (2005).2
The district court committed no Sixth Amendment error. Defendant
correctly observes that he did not admit during the guilty plea colloquy the earlier
convictions for conspiracy to transport aliens and for carrying a concealed firearm.
But Defendant failed to object to the fact statements in the presentence
investigation report (PSI) about his earlier convictions. Thus, Defendant admitted
to the existence of the convictions underlying the sentencing enhancement. See
United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005) (defendant’s
failure to object at sentencing to PSI’s fact statements about relevant conduct
constitutes admission to facts in PSI).
And Defendant’s 16-level enhancement was based solely on his earlier
convictions. In Almendarez-Torres v. United States, 118 S.Ct. 1219 (1998), the
Supreme Court stated that the government need not allege in the indictment and
need not prove beyond a reasonable doubt that a defendant had a prior conviction
2
On plain error review, a defendant must show “error” that is “plain” and that “affect[s]
substantial rights.” United States v. Olano, 113 S.Ct. 1770, 1776 (1993). It is only after these
conditions have been satisfied that an appellate court then may exercise its discretion and correct the
error if it seriously affects the fairness, integrity or public reputation of the judicial proceedings. Id.
3
for a district court to use that conviction to enhance a sentence. “This conclusion
was left undisturbed by Apprendi, Blakely, and Booker.” Shelton, 400 F.3d
at 1329. Thus, the district court did not violate Defendant’s constitutional rights
by applying the § 2L1.2(b)(1)(A) enhancement based on his earlier convictions.
See United States v. Gallegos-Aguero, 409 F.3d 1274, 1276-77 (11th Cir. 2005).
Moreover, we have rejected Defendant’s argument that the enhancement
was improper because he did not stipulate that his conviction for conspiracy to
transport aliens was an “alien smuggling” offense under § 2L1.2(b)(1)(A)(vii).
See Gallegos-Aguero, 409 F.3d at 1276-77 (rejecting argument that Sixth
Amendment requires jury, not a judge, to determine whether earlier conviction is
within category of offenses specified in § 2L1.2(b)(1)(A)(vii)). In any event, the
district court also noted that it could base the 16-level enhancement on
Defendant’s convictions for carrying a concealed firearm. See U.S.S.G.
§ 2L1.2(b)(1)(A)(iii).
The district court committed no error, plain or otherwise, in applying the
16-level § 2L1.2(b)(1)(A) enhancement.
AFFIRMED.
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