[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-11945 JULY 27, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-20844-CR-CMA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS SANCHEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 27, 2006)
Before BLACK, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Jesus Sanchez appeals his sentence of 65 months of imprisonment for
conduct including possession of a firearm as a convicted felon. Sanchez
challenges a two-level increase in his base offense level and an upward departure
in his criminal history category. We affirm.
I. BACKGROUND
Police officers stopped a vehicle for a traffic violation and discovered a
handgun on the center console and Sanchez in the passenger seat holding a rifle.
Sanchez pleaded guilty to conduct including possession of a firearm as a convicted
felon. 18 U.S.C. § 922(g)(1). Sanchez expressly limited his plea to possession of
the rifle and not the handgun. A presentence investigation report recommended a
two-level increase in Sanchez’s base offense level because the handgun was stolen.
See U.S.S.G. § 2K2.1(b)(4). The presentence investigation report stated that
another person in the vehicle had said the handgun belonged to Sanchez.
The presentence investigation report also suggested that an upward departure
in Sanchez’s criminal history category might be warranted because criminal history
points were not awarded for six previous convictions, including convictions for
carrying a concealed firearm and strong arm robbery. See U.S.S.G. § 4A1.3(a)(1).
The government filed a motion for an upward departure. Sanchez objected, under
United States v. Shepard, 544 U.S. 13, 125 S. Ct. 1254 (2005), on the ground that
the nature of some of his previous offenses could not be determined from plea
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colloquies or plea agreements.
The district court increased Sanchez’s base offense level by two levels and
granted an upward departure in Sanchez’s criminal history category. The district
court sentenced Sanchez to 65 months of imprisonment. The statutory maximum
sentence for a conviction under section 922(g)(1) is 120 months of imprisonment.
18 U.S.C. § 924(a)(2).
II. STANDARD OF REVIEW
We review de novo an increase in a base offense level. United States v. Paz,
405 F.3d 946, 948 (11th Cir. 2005). We review de novo the legal issues of an
upward departure in a criminal history category. United States v.
Castrillon-Gonzalez, 77 F.3d 403, 405 (11th Cir. 1996).
III. DISCUSSION
Sanchez appeals his sentence. He challenges both the increase in his base
offense level and the upward departure in his criminal history category. We
discuss each matter in turn.
Sanchez’s first challenge is to the two-level increase in his base offense
level, and he makes two arguments. First, Sanchez argues that, under United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), the district court
erroneously applied the guidelines as mandatory and relied upon post-verdict
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findings to enhance his sentence. Second, Sanchez argues that the enhancement
was unsupported by evidence.
Sanchez’s arguments fail. First, Booker reaffirmed the basic principle that a
district court may not rely on post-verdict findings to increase a sentence beyond a
statutory maximum, id. at 244, 125 S. Ct. at 756, but, so long as a district court
applies the guidelines as advisory, see, e.g., United States v. Shelton, 400 F.3d
1325, 1330–31 (11th Cir. 2005), it may determine facts in selecting “a specific
sentence within a defined range,” Booker, 543 U.S. at 233, 125 S. Ct. at 750.
Sanchez’s sentence was within the statutory range, see 18 U.S.C. § 924(a)(2), and
the record does not suggest that the district court failed to regard the guidelines as
advisory. Second, the district court did not err in applying the enhancement, which
was supported by the presentence investigation report.
Sanchez’s second challenge is to the upward departure in his criminal
history category, and he makes three arguments. First, Sanchez argues that the use
of certain post-verdict findings to enhance his sentence was error under Booker.
Second, Sanchez argues that reliance on those findings violated his right of
confrontation under the Sixth Amendment as explicated in Crawford v.
Washington, 541 U.S. 36, 124 S. Ct. 1534 (2004). Third, Sanchez argues that
Shepard limits the sources a district court may consider when relying on previous
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convictions to enhance a sentence under the sentencing guidelines.
These arguments fail. First, Booker does not bar the use of post-verdict
findings under advisory guidelines to enhance a sentence within a statutory range.
Booker, 543 U.S. at 233–34, 125 S. Ct. at 750. Second, the confrontation right
explicated in Crawford does not extend to sentencing proceedings. United States
v. Cantellano, 430 F.3d 1142, 1146 (11th Cir. 2005). Third, this Court has
concluded that Shepard addressed only what sources a district court may consider
when relying on previous convictions to sentence a defendant under the Armed
Career Criminal Act. Cantellano, 430 F.3d at 1146. Sanchez’s sentence was
enhanced under the advisory guidelines, see U.S.S.G. § 4A1.3(a)(1), (2)(A)–(E),
not the Armed Career Criminal Act.
IV. CONCLUSION
The sentence imposed by the district court is
AFFIRMED.
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