[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 12, 2006
No. 05-12853 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-80001-CR-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JETHRO JEROME ARTHUR,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 12, 2006)
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Jethro Jerome Arthur appeals his 30-month sentence imposed for
unlawful reentry into the United States by a previously-deported convicted felon,
in violation of 8 U.S.C. § 1326. Arthur claims that the use of a prior conviction to
increase his sentence violated his Sixth Amendment right to a jury trial because the
conviction was not alleged in the indictment, admitted by him, or proven to a jury
beyond a reasonable doubt. He also claims that his sentence imposed under the
advisory guidelines scheme established by United States v. Booker, 543 U.S. 220,
125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), violated the Due Process and Ex Post
Facto Clauses of the United States Constitution because he committed his offense
prior to Booker and relied on a mandatory guidelines scheme when he pled guilty
to the offense.
First, we reject Arthur’s Sixth Amendment argument challenging the use of
his prior conviction to enhance his sentence. Because he properly preserved this
constitutional argument, we review this claim de novo, but reverse only for harmful
error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005) (citation omitted).
With regard to Booker constitutional errors, an individual’s Sixth Amendment right
to a jury trial is violated where a judge enhances an individual’s sentence based
solely on judicially found facts pursuant to a mandatory guidelines system. Id. at
948. However, a district court does not violate the Sixth Amendment, as
interpreted in Booker, when it enhances a defendant’s sentence based on prior
2
convictions. United States v. Gallegos-Aguero, 409 F.3d 1274, 1276 (11th Cir.
2005). Moreover, we have repeatedly upheld the continuing validity of the
Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224,
118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), which allows a district court to use
prior convictions to enhance a defendant’s sentence without alleging them in the
indictment and proving them beyond a reasonable doubt. See Shelton, 400 F.3d at
1329; United States v. Camacho-Ibarquen, 410 F.3d 1307 (11th Cir.), cert. denied,
126 S. Ct. 457 (2005). Accordingly, we find no constitutional Booker error here
because Arthur’s sentence was imposed under an advisory guidelines system and
the district court was authorized to use his prior conviction to increase his sentence.
Second, we find meritless Arthur’s due process and ex post facto argument,
which was raised for the first time on appeal. Because we have held that there are
no due process or ex post facto violations based on the retroactive application of
Booker’s remedial opinion making the guidelines advisory, United States v.
Duncan, 400 F.3d 1297, 1306-08 (11th Cir.), cert. denied, 126 S. Ct. 432 (2005),
we conclude that no due process or ex post facto violations are implicated in this
case.
For the above-stated reasons, we affirm Arthur’s sentence.
AFFIRMED.
3