United States v. Alvaro Delgado-Aguilar

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 20, 2006
No. 05-14187 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 04-00050-CR-1-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALVARO DELGADO-AGUILAR,
Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(June 20, 2006)

Before ANDERSON, BIRCH and WILSON, Circuit Judges.

PER CURIAM:

Alvaro Delgado-Aguilar, who pled guilty to illegally reentering the United

States in violation of 8 U.S.C. § 1326(a) and (b)(2), appeals his 41-month

sentence. He contends that, because the characterization of his prior conviction for
aggravated assault as a “crime of violence” was not charged in the indictment or

proven to a jury, the 16-level sentencing enhancement applied by the district court

pursuant to United States Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii)

violates United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621

(2005). Although we review Delgado-Aguilar’s constitutional objection de novo,

and will reverse only for harmful error, see United States v. Paz, 405 F.3d 946, 948

(11th Cir. 2005) (per curiam), his argument is clearly foreclosed by our circuit

precedent interpreting Almendarez-Torres v. United States, 523 U.S. 224, 118 S.

Ct. 1219, 140 L. Ed. 2d 350 (1998), Apprendi v. New Jersey, 530 U.S. 466, 120 S.

Ct. 2348, 147 L. Ed. 2d 435 (2000), and Apprendi’s progeny. See, e.g., United

States v. Orduno-Mireles, 405 F.3d 960, 962-63 (11th Cir.) (Booker did not disturb

Almendarez-Torres’s holding that “recidivism is not a separate element of an

offense that the government is required to prove beyond a reasonable doubt.”),

cert. denied, __ U.S. __, 126 S. Ct. 223, 163 L. Ed. 2d 191 (2005); United States v.

Glover, 431 F.3d 744, 749 (11th Cir. 2005) (per curiam) (“[W]hether a previous

conviction is a ‘crime of violence’ is a question of law, not of fact . . . .”).

Therefore, the district court did not violate Booker when it enhanced

Delgado-Aguilar’s sentence under the Sentencing Guidelines based on its finding

that his prior conviction was for a “crime of violence.” Even so, Delgado-Aguilar

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was sentenced under an advisory guidelines scheme, so the district court did not

commit constitutional error in sentencing him.

Thus, we affirm Delgado-Aguilar’s sentence.

AFFIRMED.

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