[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-15034 APRIL 25, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 05-60031-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM JESUS BRANDEL-MENA,
a.k.a. William Bonilla,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 25, 2006)
Before BLACK, BARKETT and HULL, Circuit Judges.
PER CURIAM:
After pleading guilty, William Jesus Brandel-Mena appeals his conviction
and sentence for illegal reentry into the United States after deportation, in violation
of 8 U.S.C. § 1326(a) and (b)(2). After review, we affirm.
I. BACKGROUND
Prior to this case, Brandel-Mena, a native and citizen of Honduras, was
convicted in the United States for felony narcotics offenses two times and deported
three times. Brandel-Mena’s last deportation occurred in 2003.1 In January 2005,
Brandel-Mena was arrested in Fort Lauderdale, Florida and pled guilty to a state
offense of possession of cocaine.
A federal grand jury indicted Brandel-Mena of knowingly and unlawfully
reentering the United States, after having been previously removed, without the
express consent of the Attorney General, in violation of 8 U.S.C. § 1326(a) and
(b)(2). The indictment expressly referred to § 1326(b)(2), which provides that, if
an alien’s previous removal was “subsequent to a conviction for commission of an
aggravated felony,” the alien is subject to a maximum of twenty years’
imprisonment. See 8 U.S.C. § 1326(b)(2).
At his plea hearing, the district court explained to Brandel-Mena that his
1
On April 28, 1996, Brandel-Mena was deported after being convicted in Los Angeles,
California of possession of cocaine base with intent to sell. On March 3, 1999, he was deported
again after being convicted in Los Angeles of possession of heroin with intent to sell. On April 30,
2003, Brandel-Mena was deported after being convicted in North Lauderdale, Florida of lewd and
lascivious molestation of a person sixteen years old.
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indicted offense had a maximum penalty of two years, but that, if the government
proved at sentencing that Brandel-Mena had a prior aggravated felony conviction,
his maximum sentence could be twenty years’ imprisonment. In response,
Brandel-Mena indicated that he understood that, if the government proved his prior
convictions, he faced a possible twenty-year sentence. Later in the plea hearing,
the district court again asked Brandel-Mena whether he understood the twenty-year
maximum penalty if Brandel-Mena had a prior aggravated felony conviction.
Brandel-Mena responded that he understood. The district court asked whether
Brandel-Mena was hoping either that the court would give him a break at
sentencing or that the Supreme Court would overrule Almendarez-Torres v. United
States, 523 U.S. 224, 118 S. Ct. 1219 (1998), and Brandel-Mena agreed.
The government summarized the factual basis for Brandel-Mena’s guilty
plea, including that Brandel-Mena was deported after several felony narcotics
convictions. Brandel-Mena’s counsel stipulated to the government’s summary of
the facts, but “reserve[d] the right to examine and challenge the priors.” The
district court then found that the government’s stipulated factual basis was
“sufficient to constitute the crime of illegal reentry after deportation subsequent to
an aggravated felony conviction . . . .” The district court then asked Brandel-Mena
if it was “still [his] desire to plead guilty as previously announced . . .,” to which
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Brandel-Mena responded, “Yes.”
Also during the plea colloquy, the district court informed Brandel-Mena
that, by pleading guilty, he was giving up the right to a trial by jury, to confront
witnesses, to compel witnesses and to remain silent. The district court explained
that, by pleading guilty, Brandel-Mena would also be giving up any defenses he
could have presented at trial. Brandel-Mena acknowledged that he wanted to give
up those rights and plead guilty. The district court found that Brandel-Mena
voluntarily and intelligently entered his guilty plea and that he understood the
nature of the charges against him and the consequences of his plea.
The presentence investigation report (“PSI”) set Brandel-Mena’s base
offense level at 8. See U.S.S.G. § 2L1.2. The PSI recommended a sixteen-level
increase, pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii), due to his deportation after
felony convictions for possession with intent to sell cocaine base and heroin. The
PSI noted, among other things, that in 1996 Brandel-Mena was arrested for and
pled guilty to possession of cocaine base with intent to sell and that in 1997 he was
arrested for and pled guilty to possession of heroin with intent to sell. The PSI
recommended a three-level decrease for acceptance of responsibility, pursuant to
U.S.S.G. § 3E1.1. With a total offense level of 21 and a criminal history category
of VI, the PSI’s recommended advisory Guidelines range was 77 to 96 months’
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imprisonment. Brandel-Mena did not file written objections to the PSI.2
At the sentencing hearing, Brandel-Mena did not dispute the existence of his
prior felony drug convictions or that they were aggravated felonies. He also did
not dispute the factual accuracy of the PSI or object to the PSI’s recommended 16-
level Guidelines enhancement based on his prior felony drug convictions. Rather,
Brandel-Mena objected solely to the use of his prior felony drug convictions to
increase the statutory maximum sentence. The district court overruled the
objection.
During allocution, Brandel-Mena apologized for reentering the United States
illegally, but stated that he was never informed that it would be illegal to reenter
once he was deported. In response, the district court asked Brandel-Mena whether
he wished to withdraw his guilty plea, to which he answered that he did not, as
follows:
THE COURT: So, Mr. Bonilla, what you are saying maybe
could be a defense to this charge. Maybe you want to move to
withdraw your plea and we will see what Mr. Ramos has to say. Or
maybe you want to think about what you have been saying.3
Let me put the case on recall for a second and give Mr. Bonilla
a chance to talk to Mr. Marks.
2
Because Brandel-Mena did not object to the factual portions of the PSI relating to his prior
felony drug convictions, he has admitted those facts. See United States v. Shelton, 400 F.3d 1325,
1330 (11th Cir. 2005).
3
Brandel-Mena is also known as William Bonilla, and the district court referred to him as
such at the plea hearing and at sentencing.
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(Pause.)
MR. MARKS: Thank you, Your Honor, for the time to confer
with Mr. Bonilla.
We are prepared to go forward with the sentencing. He does
not desire to withdraw - - or make a motion to withdraw his guilty
plea.
THE COURT: You understand, Mr. Bonilla, that you could
have asked your lawyer to file a motion to withdraw your guilty plea
saying that you didn’t know you couldn’t come back to this country,
and if I granted the motion to withdraw your guilty plea, then we
would go to trial on the case, and if you are found not guilty, then that
would be the end of the case? If you persist with your guilty plea, you
can’t complain later on about not being told that you couldn’t come
back to the country. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: And this is what you want to do, persist with
your guilty plea and waive any complaint about not being told that
you were not allowed to come back to the country?
THE DEFENDANT: Yes.
The district court then sentenced Brandel-Mena to 78 months’ imprisonment
and three years’ supervised release.
II. DISCUSSION
A. Guilty Plea
On appeal, Brandel-Mena argues that his guilty plea is invalid because,
during the plea colloquy, the district court failed to advise him of his right to
persist in pleading not guilty, as required by Rule 11. Because Brandel-Mena
raises this issue for the first time on appeal, we review for plain error. See United
States v. Moriarty, 429 F.3d 1012, 1019 (11 th Cir. 2005). “To establish plain error,
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a defendant must show there is (1) error, (2) that is plain, and (3) that affects
substantial rights.” Id. If a defendant meets all three of these conditions, we may
exercise our discretion to recognize the error “if the error seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” Id. (quotation
marks omitted).
A court accepting a guilty plea must comply with Rule 11 and, in particular,
address three “core concerns” by ensuring that: (1) the guilty plea is voluntary; (2)
the defendant understands the nature of the charges; and (3) the defendant
understands the consequences of his plea. Id. Rule 11 states that the district court,
before accepting the defendant’s guilty plea, must advise the defendant in open
court of, inter alia, his “right to plead not guilty, or having already so pleaded, to
persist in that plea.” See Fed. R. Crim. P. 11(b)(1)(B). Here, the district court did
not explicitly inform Brandel-Mena of his right to persist in his not-guilty plea.
The government contends that the district court was not required to recite the Rule
11 waiver of rights verbatim and that the district court effectively advised Brandel-
Mena of his right to persist in his not-guilty plea during the course of the
proceedings.
We need not resolve this issue because, even assuming there was Rule 11
error that was plain, Brandel-Mena has not shown that the error affected his
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substantial rights. At a minimum, Brandel-Mena was required to show a
“‘reasonable probability that, but for the [Rule 11] error, he would not have entered
the plea.’” See Moriarty, 429 F.3d at 1020 (quoting United States v. Dominguez
Benitez, 542 U.S. 74, 83, 124 S. Ct. 2333, 2340 (2004)). Brandel-Mena has not
alleged, much less shown, that, but for the district court’s omission, he would not
have pled guilty.
Indeed, during the plea colloquy, the district court thoroughly questioned
Brandel-Mena about his intention to plead guilty in spite of the requirement that he
give up numerous constitutional rights. After the government recited the factual
basis for the guilty plea, the district court asked Brandel-Mena whether he still
wanted to plead guilty, and Brandel-Mena responded that he did. Moreover, at
sentencing, after Brandel-Mena asserted that he had never been told that it would
be illegal for him to reenter the United States, Brandel-Mena declined the district
court’s invitation to move to withdraw his guilty plea. See United States v.
Monroe, 353 F.3d 1346, 1350 (11 th Cir. 2003) (explaining that, when considering
whether a Rule 11 error affected a defendant’s substantial rights, “the reviewing
court may consult the whole record”).
B. Prior Convictions
Citing the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S.
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466, 120 S. Ct. 2348 (2000), Brandel-Mena argues that his Fifth and Sixth
Amendment rights were violated because the district court increased his statutory
maximum sentence based on prior felony drug convictions that were not charged in
the indictment or proved to a jury beyond a reasonable doubt.4 Brandel-Mena’s
argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 228,
118 S. Ct. 1219, 1223 (1998). As Brandel-Mena candidly acknowledges, the
Supreme Court consistently carved out an exception for prior convictions in
Apprendi and its progeny Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531
(2004) and United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). We
repeatedly have explained that, despite speculation about the future viability of
Almendarez-Torres, we are bound by Almendarez-Torres until it is explicitly
overruled by the Supreme Court. See, e.g., United States v. Greer, ___ F.3d ___,
2006 WL 435662, at *5-9 (11 th Cir. Feb. 24, 2006); United States v. Gibson, 434
F.3d 1234, 1246 (11 th Cir. 2006). Therefore, the district court did not err in using
Brandel-Mena’s prior convictions to enhance his sentence.
Accordingly, for all of these reasons, we affirm Brandel-Mena’s conviction
4
Because Brandel-Mena timely raised his Apprendi/Booker objection in the district court,
we review his claim de novo. See United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). We note
that Brandel-Mena challenges only the increase in his statutory maximum sentence under 8 U.S.C.
§ 1326(b)(2). He does not challenge the 16-level increase in his base offense level (pursuant to
U.S.S.G. § 2L1.2(b)(1)(A)(i)) that was used in calculating his advisory Guidelines range.
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and sentence.
AFFIRMED.
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