[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Sept. 23, 2009
No. 09-11959 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 09-80010-CR-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OLBIN NEFTALI MEDINA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 23, 2009)
Before DUBINA, Chief Judge, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Appellant Olbin Neftali Medina appeals his 41-month sentence imposed
following his guilty plea to illegal reentry into the United States after deportation,
in violation of 8 U.S.C. § 1326 (a), (b)(2). On appeal, Medina alleges a Fifth and
Sixth Amendment violation on the ground that the enhancement of his sentence
due to an increase in the base offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)
was based on a predicate aggravated felony that was neither charged in the
indictment nor proven to a jury beyond a reasonable doubt.
Because Medina properly raised his objections to the enhancement of his
sentence to the district court, we review the sentence de novo, but will only reverse
for harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).
A district court does not violate the Sixth Amendment when conducting
judicial fact finding, so long as it applies the Sentencing Guidelines as advisory.
United States v. Dudley, 463 F.3d 1221, 1228 (11th Cir. 2006); United States v.
Rodriguez, 398 F.3d 1291, 1300 (11th Cir. 2005) (holding that extra-verdict
enhancements used “in a non-mandatory guidelines system [are] constitutionally
permissible”).
Medina’s challenge on appeal is limited to the increase in his base offense
level pursuant to U.S.S.G. § 2L1.2(b)(1)(A). However, to the extent he also seeks
to challenge the statutory enhancement in 8 U.S.C. § 1326(b)(2), that challenge is
foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United States,
2
523 U.S. 224, 246-47, 118 S. Ct. 1219, 1232-33, 140 L. Ed. 2d 350 (1998)
(holding that neither the statute nor the Constitution require the government to
charge a prior offense in the indictment or prove it beyond a reasonable doubt
when it is being used to increase a sentence).
Moreover, at the sentencing hearing, the district court acknowledged that the
Sentencing Guidelines were advisory when it pronounced Medina’s sentence.
Since the court applied the Sentencing Guidelines in an advisory manner, the court
did not violate the Fifth and Sixth Amendments by enhancing Medina’s sentence
based on a prior conviction that was not alleged in the indictment. See Dudley, 463
F.3d at 1228. Accordingly, we affirm Medina’s sentence.
AFFIRMED.
3