United States v. Dunston Burke

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Aug. 25, 2009
No. 09-10290 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 08-60215-CR-WJZ

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DUNSTON BURKE,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(August 25, 2009)

Before TJOFLAT, EDMONDSON and BLACK, Circuit Judges.

PER CURIAM:

Dunston Burke appeals his 30-month sentence, imposed after he pled guilty
to one count of illegally re-entering the United States after having been previously

removed and deported, in violation of 8 U.S.C. § 1326(a), (b)(1). On appeal,

Burke argues his Fifth and Sixth Amendment rights were violated because the

district court enhanced his sentence based on a prior conviction, which was neither

charged in the indictment nor found by a jury beyond a reasonable doubt. Burke

concedes that his position is contrary to the Supreme Court’s decision in

Almendarez-Torres v. United States, 118 S. Ct. 1219 (1998), and this Court’s

precedent, but “raises the issue and preserves it for further attacks on his conviction

and sentence should the state of the law change.”

Whether a prior conviction qualifies as an “aggravated felony,” pursuant to

U.S.S.G. § 2L1.2(b)(1)(C), is a question subject to de novo review. See United

States v. Ayala-Gomez, 255 F.3d 1314, 1316 (11th Cir. 2001).

This Court is obligated to adhere to Supreme Court precedent unless and

until abrogated by the Supreme Court, Motorcity of Jacksonville, Ltd. v. Southeast

Bank N.A., 120 F.3d 1140, 1143 (11th Cir. 1997) (en banc), and Almendarez-

Torres controls the outcome in this case, see United States v. Marseille, 377 F.3d

1249, 1257 (11th Cir. 2004).

Even if Almendarez-Torres were to be abrogated, the district court did not

err in enhancing Burke’s sentence. Burke failed to lodge any factual challenge to

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his prior conviction set forth in the PSI. Thus, Burke effectively admitted to

having a prior conviction for a felony drug trafficking offense, which constituted

an aggravated felony under 8 U.S.C. § 1101(a)(43)(B), Immigration and

Nationality Act (INA) § 101(a)(43).1 See United States v. Gibson, 434 F.3d 1234,

1251 (11th Cir. 2006) (holding that, because the defendant did not object to the

factual recitations in the PSI, he effectively admitted the facts in the PSI); United

States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005) (explaining that failure to

object to matters contained in the PSI constitutes an admission of those facts for

purposes of Booker). Therefore, the district court did not err in enhancing the

statutory maximum to 10 years, pursuant to 8 U.S.C. § 1326(b)(1),2 or by applying

the eight-level enhancement, pursuant to U.S.S.G. § 2L1.2(b)(1)(C), based on the

prior conviction. See Marseille, 377 F.3d at 1257. Accordingly, we affirm.

AFFIRMED.

1
Section 2L1.2 of the Guidelines provides that the base offense level for unlawfully
entering or remaining in the United States is eight, and that an eight-level increase applies if the
defendant was previously deported, or unlawfully remained in the United States, after a
conviction for an aggravated felony. U.S.S.G. § 2L1.2(a), (b)(C); see also 8 U.S.C. § 1326(a),
INA § 276(a). The commentary provides that an aggravated felony has the meaning given that
term in section 101(a)(43) of the INA. U.S.S.G. § 2L1.2, comment. (n.3). Under the INA,
“illicit trafficking in a controlled substance” constitutes an aggravated felony. 8 U.S.C. §
1101(43)(B), INA § 101(a)(43).
2
The district court determined Burke had been found to be unlawfully in the United
States after having been convicted of an aggravated felony and deported, which would have
subjected him to a 20-year maximum sentence under 8 U.S.C. § 1326(b)(2). Because the
indictment charged Burke under 8 U.S.C. § 1326(b)(1), he was subject to a 10-year maximum
sentence.

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