[DO NOT PUBLISH]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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