[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 3, 2008
THOMAS K. KAHN
No. 07-15851
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 07-00153-CR-J-33-JRK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN BELTRAN-GABITO,
a.k.a. Jose Juan Rodriguez-Beltran,
a.k.a. Juan Beltran,
a.k.a. Juan Beltran-Gavito,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 3, 2008)
Before TJOFLAT, BLACK and WILSON, Circuit Judges.
PER CURIAM:
Juan Beltran-Gabito, a Mexican citizen, appeals his 49-month sentence for
entering the United States after being deported or removed, in violation of 8 U.S.C.
§ 1326.
On appeal, Beltran-Gabito first argues that his 49-month sentence is illegal
because he pled to simple reentry pursuant to 8 U.S.C. § 1326(a), which carries a
statutory maximum sentence of 2 years’ imprisonment, as opposed to reentry after
deportation following an aggravated felony under § 1326(b). He acknowledges
that in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L.
Ed. 2d 350 (1998), the Supreme Court held that a defendant’s prior “aggravated
felony” conviction need not be alleged in an indictment for a court to enhance the
defendant’s sentence under § 1326(b), but he argues that more recent cases have
indicated that a majority of the Supreme Court no longer supports the holding of
Almendarez-Torres, thereby calling its continued validity into question.
Sixth Amendment challenges to a sentences raised for the first time on
appeal are reviewed only for plain error. United States v. Smith, 480 F.3d 1277,
1279 (11th Cir.), cert. denied, 128 S. Ct. 175, 169 L. Ed. 2d 119 (2007). Under
plain error review, we have only “a limited power to correct errors that were
forfeited because [they were] not timely raised in [the] district court.” United
States v. Olano, 507 U.S. 725, 731, 113 S. Ct. 1770, 1776, 123 L. Ed. 2d 508
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(1993). We may not correct an error that the defendant failed to raise in the district
court unless there is: “(1) error, (2) that is plain, and (3) that affects substantial
rights.” United States v. Cotton, 535 U.S. 625, 631, 122 S. Ct. 1781, 1785, 152 L.
Ed. 2d 860 (2002) (internal quotations marks omitted). “If all three conditions are
met, an appellate court may then exercise its discretion to notice a forfeited error,
but only if (4) the error seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.” Id. (internal quotations marks omitted).
The Supreme Court has instructed that plain error review should be
exercised “sparingly,” Jones v. United States, 527 U.S. 373, 389, 119 S. Ct. 2090,
2102, 144 L. Ed. 2d 370 (1999), and only “in those circumstances in which a
miscarriage of justice would otherwise result,” Olano, 507 U.S. at 736, 113 S. Ct.
at 1779 (internal quotation marks omitted). Similarly, we have held that “[t]he
plain error rule places a daunting obstacle before [the appellant].” United States v.
Pielago, 135 F.3d 703, 708 (11th Cir. 1998).
It is illegal to enter the United States after being deported, and the offense
normally carries a maximum sentence of two years’ imprisonment. 8 U.S.C. §
1326(a). If, however, the alien was removed subsequent to a conviction for an
aggravated felony, the offense carries a maximum sentence of 20 years’
imprisonment. 8 U.S.C. § 1326(b)(2). Beltran-Gabito does not challenge the
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conclusion that his prior conviction constitutes an aggravated felony.
In Almendarez-Torres, the Supreme Court held the government need not
allege in its indictment and need not prove beyond a reasonable doubt that a
defendant had prior convictions in order for the district court to use those
convictions for purposes of enhancing a sentence. Almendarez-Torres, 523 U.S. at
235-39, 118 S. Ct. at 1226-29. The Court also clarified that § 1326(b)(2) sets forth
a sentencing factor as to the offense described in § 1326(a) and “not a separate
criminal offense.” Id. at 235, 118 S. Ct. at 1226. The Court has also stated that its
“decisions remain binding precedent until [it] see[s] fit to reconsider them,
regardless of whether subsequent cases have raised doubts about their continuing
vitality.” Hohn v. United States, 524 U.S. 236, 252-53, 118 S. Ct. 1969, 1978, 141
L. Ed. 2d 242 (1998). We have held, moreover, that while recent decisions of the
Supreme Court may have arguably cast doubt on Almendarez-Torres, the case is
still controlling precedent because the Supreme Court has not explicitly overruled
it. United States v. Camacho-Ibarquen, 410 F.3d 1307, 1316 n.3 (11th Cir. 2005)
(per curiam).
Thus, because Almendarez-Torres remains good law, the district court did
not err, much less plainly err, in increasing Beltran-Gabito’s offense level due to
the aggravated felony.
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Beltran-Gabito next argues that even if his sentence was not
unconstitutionally enhanced, we must vacate his sentence because the district court
orally pronounced a 49-month sentence but imposed a 51-month sentence in its
written judgment. Beltran-Gabito is correct that the written judgment erroneously
pronounced a sentence of 51 months’ imprisonment. That judgment has since been
amended, however, to reflect the same 49-month sentence that the court
pronounced orally at his sentencing hearing. Because the court unambiguously
pronounced a judgment of 49 months’ imprisonment orally, it was allowed to
correct its clerical error. Therefore, Beltran-Gabito has already received the relief
that he is seeking from this Court, and the issue is no longer live, rendering his
appeal on this issue moot. See 31 Foster Children v. Bush, 329 F.3d 1255, 1263
(11th Cir. 2003) (“[A] case is moot when the issues presented are no longer live or
the parties lack a legally cognizable interest in the outcome.” (internal quotation
marks omitted)).
For the reasons set forth above, Beltran-Gabito’s sentence is affirmed, and
his appeal is dismissed in part.
AFFIRMED IN PART, DISMISSED IN PART.
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