[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 9, 2006
No. 05-12706
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00107-CR-FTM-29-DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISIDORO MARTINEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 9, 2006)
Before TJOFLAT, CARNES and HULL, Circuit Judges.
PER CURIAM:
Isidoro Martinez appeals his 87-month sentence imposed after pleading
guilty to being an alien found in the United States without permission after having
previously been convicted of an aggravated felony and removed from the United
States, in violation of 8 U.S.C. § 1326(a), (b)(2). On appeal, Martinez argues that
his 87-month sentence, within the guidelines range, was unreasonable and was
imposed in violation of the Due Process Clause and the rule of Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). After review, we affirm.
I. BACKGROUND
A. Plea Colloquy
Martinez pled guilty without a written plea agreement to the above unlawful
re-entry charge. During the plea colloquy, Martinez admitted that on February 16,
1999, he had been convicted of battery on a law enforcement officer, a felony
offense, in Hendry County, Florida and then deported. Thereafter, Martinez re-
entered the United States without permission and, on November 27, 2003, was
found in Collier County, Florida.
B. PSI
The presentence investigation report (“PSI”) set forth the following
additional facts. On May 26, 1998, Martinez, a native of Mexico, was convicted of
carrying a concealed firearm in Naples, Florida and was sentenced to 18 months’
probation. On February 16, 1999, he was convicted of battery on a law
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enforcement officer in Hendry County and placed on five years’ probation.
Martinez violated his probation on October 18, 1999, and was sentenced to 20
months in prison. While incarcerated, Martinez admitted that he had entered the
United States illegally in 1995. Once his state prison sentence was completed, he
was deported from the United States in 2001.
On November 27, 2003, Martinez was arrested in Naples, Florida for false
imprisonment, battery, and criminal mischief and was convicted and sentenced to
one year in jail on September 15, 2004. Before he was convicted and sentenced on
the Naples charges, he was arrested again on January 6, 2004, for violating his
probation in Hendry County and, on April 27, 2004, was sentenced to one year in
jail. While in the Hendry County jail, Martinez admitted to being deported from
the United States in 2001 and to re-entering without permission in March 2003.
The PSI assigned a base offense level of 8, pursuant to U.S.S.G. § 2L1.2(a),
applicable to offenses involving unlawful entry into the United States. Pursuant to
U.S.S.G. § 2L1.2(b)(1)(A)(ii), the PSI increased Martinez’s base offense level by
16 levels because Martinez was previously deported after a conviction for a crime
of violence, battery on a law enforcement officer. The PSI recommended a three-
level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a)-
(b).
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With regard to Martinez’s criminal history, the PSI included the following
offenses and corresponding points: (1) three points for an 18-month probation
sentence, entered on May 26, 1998, for carrying a concealed firearm on February
14, 1998, and a 20-month prison sentence after his probation was revoked on
October 18, 1999; (2) two points for a five-year probation sentence, entered on
February 16, 1999, for battery on a law enforcement officer, not having a valid
driver’s license, and willful or wanton reckless driving on August 1, 1998, and a
12-month prison sentence after his probation was revoked on April 27, 2004; (3)
two points for a 12-month prison sentence, entered January 14, 2000, for
battery/domestic violence on May 22, 1999, when officers found Martinez’s
girlfriend, Maria Anzualda, with blood on her hands and neck from where
Martinez had hit her in the head, arms, and legs with his boot; (4) two points for a
12-month prison sentence, entered January 14, 2000, for battery/domestic violence
against his girlfriend Anzualda on September 25, 1999; and (5) two points for a 12-
month prison sentence, entered September 15, 2004, for false imprisonment,
battery, and criminal mischief on November 27, 2003, when a witness reported
seeing Martinez beat his then-girlfriend, Maria Espinosa-Echavarria.
These criminal convictions resulted in a subtotal criminal history score of
11. Two points were added because Martinez was on probation for the felony
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battery on a law enforcement officer when he committed the instant offense. See
U.S.S.G. § 4A1.1(d) (stating that two points are added to the defendant’s criminal
history score if he “committed the instant offense while under any criminal justice
sentence, including probation”). Thus, Martinez’s total criminal history points
amounted to 13, which established a criminal history category of IV.
With a total offense level of 21 and a criminal history category IV, the PSI
recommended an advisory guidelines range of 77 to 96 months’ imprisonment.
Martinez had no factual objections to the contents of the PSI. Martinez’s sole
written objection to the PSI was to contend that his criminal history category of IV
was overstated, warranting a downward departure. Martinez did not dispute that he
had the above convictions, but only that they overstated his criminal history.
C. Sentencing
At the sentencing hearing, Martinez reiterated that he did not object to the
facts stated in the PSI and also stated that he had no objections to the PSI’s
application of the guidelines. Martinez withdrew his request for a downward
departure, explaining that he had determined that his request was actually an
“argument for additional mitigation in light of Booker,” and instead argued for a
sentence outside the guidelines range. In so doing, Martinez acknowledged that his
criminal history had been “technically correctly scored,” but argued that “with one
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or two exceptions, all of the criminal history relat[ed] to charges that involve[d]
Ms. De Pilar Espinosa,” Martinez’s fiancee.
Martinez explained that Espinosa-Echavarria was present to testify that the
reports were exaggerated. Martinez explained further that Espinosa-Echavarria
had tried to persuade the state to drop the charges of false imprisonment and that
Martinez pleaded guilty to the charges because he had done so in the other cases
against him. Martinez suggested that his criminal history, put in context, was not
as severe as represented by the guidelines sentence. Espinosa-Echavarria then
testified and only requested that the judge place Martinez in a facility as near to her
as possible so that she could visit him while he was in custody.
The district court acknowledged that it could sentence Martinez outside of
the guidelines range because the guidelines were only advisory and that “under the
statute, the Court is supposed to impose a sentence that is sufficient, but not greater
than necessary to comply with the statutory purposes of sentencing.” However, the
court explained that:
[Martinez’s] biggest problem is his criminal history. Not only
is it at the top of the range for guideline purposes, I think [the
government] is right, I mean, the common denominator for almost all
of them is violence. And the fact that the victim, for whatever reason,
doesn’t seem to think that’s going to be a problem in the future, it has
been a problem in the past. He’s carried firearms before. He’s gotten
into problems with police officers.
I guess I have a hard time seeing why a sentence outside the
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guidelines would be appropriate.
I see a number of people who are here illegally, from other
countries. Typically, to work. That’s not your client. If it is, he’s
committing crimes much more frequently than is typical for this kind
of person.
I’ll be glad to hear from you, but, I mean, I look at his record,
and I see a violent man who is not supposed to be here. And his
criminal history – you may be right, but for his violence against the
witness, he might have had two or three points. But he was violent.
He did those things. He had firearms. I have a real hard time seeing
that a sentence outside the guidelines is appropriate.
The court asked Martinez if he had any additional objections, and Martinez
responded that he had none. Martinez was sentenced to 87 months’ imprisonment,
the middle of the guidelines range, and three years’ supervised release.
II. DISCUSSION
A. Jurisdiction
The government, as a threshold matter, points out that Martinez does not
challenge any application of the guidelines or the ultimate calculation of his
guideline range of 77 to 96 months. Because Martinez’s sentence was within a
correctly-calculated guidelines range, the government contends that this Court
lacks jurisdiction under 18 U.S.C. § 3742 to review the reasonableness of
Martinez’s sentence. We disagree.
First, post-Booker, this Court repeatedly has reviewed sentences within the
guidelines range for unreasonableness. See, e.g., United States v. Talley, ___ F.3d
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___, No. 05-11353, 2005 WL 3235409 (11 th Cir. Dec. 2, 2005); United States v.
Scott, 426 F.3d 1324 (11 th Cir. 2005); United States v. Winingear, 422 F.3d 1241
(11 th Cir. 2005). Second, although Booker excised the standards of review in 18
U.S.C. § 3742(e), the Supreme Court explained that “the [Federal Sentencing] Act
continues to provide for appeals from sentencing decisions (irrespective of whether
the trial judge sentences within or outside the Guidelines range in the exercise of
his discretionary power under § 3553(a)),” and cited 18 U.S.C. § 3742(a).1 United
States v. Booker, 543 U.S. 220, ___, 125 S. Ct. 738, 765 (2005) (instructing
appellate courts to review a sentence for “unreasonableness” in light of the factors
set forth in § 3553(a)).
Although the Supreme Court in Booker did not identify which provision of §
3742(a) provided for appeals for “unreasonableness,” we conclude that a post-
Booker appeal based on the “unreasonableness” of a sentence, whether within or
1
Specifically, § 3742(a) provides a defendant may appeal his sentence if that sentence:
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the
sentencing guidelines; or
(3) is greater than the sentence specified in the applicable guideline
range to the extent that the sentence includes a greater fine or term of
imprisonment, probation, or supervised release than the maximum
established in the guideline range, or includes a more limiting
condition of probation or supervised release under section 3563(b)(6)
or (b)(11) than the maximum established in the guideline range; or
(4) was imposed for an offense for which there is no sentencing
guideline and is plainly unreasonable.
18 U.S.C. § 3742(a).
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outside the advisory guidelines range, is an appeal asserting that the sentence was
imposed in violation of law pursuant to § 3742(a)(1). See United States v. Frokjer,
415 F.3d 865, 875 & n.3 (8 th Cir. 2005) (holding that Booker did not alter the rule
that a district court’s discretionary decision not to depart downward is
unreviewable, but noting that, after Booker, the court will “review a defendant’s
argument that even a sentence within the advisory guideline range is
‘unreasonable’ with regard to the factors set forth in 18 U.S.C. § 3553(a), and an
unreasonable sentence would be imposed ‘in violation of law’ within the meaning
of § 3742(a)”) (citation omitted).2 Thus, this Court has jurisdiction under §
3742(a)(1) to review sentences for unreasonableness.
B. Reasonableness
Having determined that we have jurisdiction, we now consider Martinez’s
reasonableness challenge to his sentence. To do so, we review Martinez’s final
sentence, in its entirety, for unreasonableness in light of the factors in § 3553(a).
See Winigear, 422 F.3d at 1245 (“We do not apply the reasonableness standard to
each individual decision made during the sentencing process; rather, we review the
final sentence for reasonableness.”).
2
This appeal does not challenge a district court’s refusal to grant a motion for a downward
departure under the guidelines. Although Martinez initially requested a downward departure, he
withdrew this request at sentencing.
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We easily conclude that Martinez’s 87-month sentence is not unreasonable.
First, the 87-month sentence was within the guidelines range and was almost one-
third the length of the twenty-year statutory maximum sentence. Martinez
admitted twice entering this country unlawfully, once after being deported. He has
repeatedly violated his probation and has committed additional offenses while on
probation. As the district court noted, many of his prior convictions involved
violence.
In addition, the record does not support Martinez’s contention that the
district court applied the guidelines range in a presumptive manner. Rather, the
district court acknowledged that, based on the advisory nature of the guidelines, it
could sentence Martinez outside the guidelines range and that “under the statute,
the [district court] is supposed to impose a sentence that is sufficient, but not
greater than necessary to comply with the statutory purposes of sentencing.”
Furthermore, the district court’s deliberations reflect consideration of several
§ 3553(a) factors, apart from the guidelines range. In any event, “nothing in
Booker or elsewhere requires the district court to state on the record that it has
explicitly considered each of the § 3553(a) factors or to discuss each of the §
3553(a) factors.” Scott, 426 F.3d at 1329.
Martinez’s argument that his criminal history was disproportionately
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emphasized likewise fails. Martinez admitted that his criminal history had been
correctly scored. Furthermore, contrary to Martinez’s claim in his brief, Espinosa-
Echavarria did not testify at the sentencing hearing that those offenses were false
or exaggerated. Espinosa-Echavarria’s testimony consisted only of a request that
the judge place Martinez in a facility as near to her as possible so that she could
visit him while he was in custody.
In short, nothing in the record convinces us that Martinez’s sentence was
unreasonable in light of the § 3553(a) factors.
C. Martinez’s Constitutional Claims
On appeal, Martinez for the first time raises arguments that his sentence
violated the Due Process Clause and the principles of Apprendi and Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). We review his newly-raised
constitutional arguments for plain error. United States v. Fields, 408 F.3d 1356,
1360 (11 th Cir.), cert. denied, 126 S. Ct. 221 (2005).3 Here, we find no error, plain
or otherwise.
First, Martinez’s constitutional arguments are premised, in part, on the
assumption that his uncharged prior convictions cannot be used to increase his
3
We correct plain error where (1) there is error, (2) that is plain, (3) that affects substantial
rights, and (4) seriously affects the fairness, integrity or public reputation of judicial proceedings.
Fields, 408 F.3d at 1360.
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statutory maximum sentence or his guidelines range. Martinez acknowledges that
his position conflicts with Almendarez-Torres v. United States. See Almendarez-
Torres v. United States, 523 U.S. 224, 247, 118 S. Ct. 1219, 1233 (1998)
(concluding that prior convictions need not be pled in an indictment or proved to a
jury beyond a reasonable doubt to trigger enhanced statutory maximums under 8
U.S.C. § 1326). Martinez argues that Almendarez-Torres has been undermined by
subsequent Supreme Court decisions such as Apprendi, Blakely, Booker, and, most
recently, Shepard v. United States, __ U.S. __, 125 S. Ct. 1254, 1262-63 (2005).
While those recent decisions “may arguably cast doubt on the future prospects of
Almendarez-Torres’s holding regarding prior convictions, the Supreme Court has
not explicitly overruled Almendarez-Torres. As a result, we must follow
Almendarez-Torres.” United States v. Camacho-Ibarquen, 410 F.3d 1307, 1316
n.3 (11 th Cir.), cert. denied, 126 S. Ct. 457 (2005). Therefore, Apprendi and
Blakely did not preclude the district court from enhancing Martinez’s sentence
based on uncharged prior convictions.4
Second, this Court has already rejected the due process arguments Martinez
4
Martinez also argues for the first time on appeal that, because his prior convictions were
used to increase his base offense level under U.S.S.G. § 2L1.2(b)(1)(A) and also to determine his
criminal history points, they were impermissibly double counted. This argument has already been
rejected by this Court in United States v. Wimbush, 103 F.3d 968, 970 (11th Cir. 1997), and thus has
no merit. There certainly is no error that is plain.
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makes. See United States v. Duncan, 400 F.3d 1297, 1307 (11 th Cir.), cert. denied,
126 S. Ct. 432 (2005) (concluding that the defendant’s due process rights were not
violated where, at the time the defendant committed the offense, the United States
Code and the guidelines advised the defendant of the statutory maximum sentence
and “that a judge would engage in fact-finding to determine his sentence and could
impose up to” the statutory maximum sentence).5
At the time Martinez committed his offense in 2003, 8 U.S.C. § 1326(b)(2)
advised Martinez that, if he was convicted of being found in the United States after
having been convicted of an aggravated felony and then removed from the United
States, he was subject to a sentence of up to twenty years’ imprisonment. As in
Duncan, the guidelines at the time informed Martinez that a judge would engage in
fact-finding to determine his sentence and could impose a sentence up to twenty
years. 18 U.S.C. §§ 3551 et seq.; Duncan, 400 F.3d at 1307. Therefore, under
Duncan, Martinez had sufficient warning at the time that he committed his offense
that a potential consequence was a twenty-year sentence, and his due process rights
were not violated.
5
Martinez contends that retroactive application of Booker’s remedial holding increased the
sentence authorized by his guilty plea from the maximum under mandatory guidelines to the
maximum permitted by statute, and thus operated as an ex post facto law that violated his due
process right to fair warning of the criminal penalties he faced. This same argument was rejected
in Duncan. See Duncan, 400 F.3d at 1307.
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For all of these reasons, we affirm Martinez’s 87-month sentence.
AFFIRMED.
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