United States v. Montero-Diaz ( 2006 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-1496
UNITED STATES,
Appellee,
v.
LISANDY MONTERO-DIAZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. Garcia-Gregory, U.S. District Judge]
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Raymond Rivera Esteves on Anders brief.
Lisandy Montero-Diaz on brief pro se.
April 3, 2006
Per Curiam. Appellant Lisandy Montero-Diaz, a citizen of
the Dominican Republic, pled guilty (without a plea agreement) to
one count of re-entering the United States after removal subsequent
to the commission of an aggravated felony, in violation of 8 U.S.C.
§ 1326(a)(2) and (b)(2). Because he was sentenced after the
Supreme Court's decision in United States v. Booker, 543 U.S. 220(2005), the sentencing guidelines were advisory rather than
mandatory. In calculating the guidelines range, the sentencing
court applied a 16-level increase to the base offense level,
pursuant to U.S.S.G. § 2L1.2(b)(1)(A), and arrived at an
imprisonment range of 57 to 71 months. Defense counsel requested a
sentence below that range, based on the defendant's personal
circumstances. The court, treating the guidelines as purely
advisory, imposed a sentence of 57 months, for which it gave a
"reasoned explanation." United States v. Jimenez-Beltre, __ F.3d
__, 2006 WL 562154 (1st Cir., March 9, 2006).
Counsel for defendant has filed a motion to withdraw and
a brief pursuant to Anders v. California, 386 U.S. 738 (1967).
Appellant has filed a supplemental pro se brief. For the reasons
stated below, and after a full examination of the record, we
conclude that this appeal presents no meritorious issues.
I. Issues Raised in Anders Brief
The Anders brief addressed appellant's argument that the
district court erred in applying a 16-level enhancement in its
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guidelines calculation where the sentence served was allegedly less
than thirteen months. We agree with the conclusion in the Anders
brief that this issue is without merit. The argument is foreclosed
by this court's decision in United States v. Carrasco-Mateo, 389
F.3d 239 (1st Cir. 2004), cert. denied, __ U.S. __, 125 S. Ct. 1721(2005). The Anders brief also correctly states that there is no
Booker error where the court, treating the guidelines as advisory,
bases enhancements upon factual findings not charged in the
indictment and proven beyond a reasonable doubt, or admitted by the
defendant. See United States v. Antonakopoulos, 399 F.3d 68, 75
(1st Cir. 2005).
II. Issues Raised in Pro Se Brief
A. Ex Post Facto Clause
Montero-Diaz argues that the effect of the Court's Booker
decision, which changed the sentencing guidelines from a mandatory
to an advisory system, offends the Constitution's ex post facto
clause. The ex post facto clause prohibits a legislative increase
in punishment after the event. See United States v. Lata, 415 F.3d
107 (1st Cir. 2005). In this case, however, Montero-Diaz' sentence
did not exceed the guideline maximum (71 months). Moreover, this
court has held that the ex post facto clause "does not apply of its
own force to changes worked by judicial decisions." Id. at 110.
And the sentence, at the bottom of the applicable guideline range,
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does not raise any fair warning concerns under the due process
clause. See id. at 112.
B. Nondelegation Doctrine
Appellant argues that the Sentencing Commission's
promulgation of U.S.S.G. § 2L1.2 violates the nondelegation
doctrine barring Congress from delegating its legislative power to
another branch. The Supreme Court has held, however, that
"Congress' delegation of authority to the Sentencing Commission [to
promulgate sentencing guidelines] is sufficiently specific and
detailed to meet constitutional requirements." Mistretta v. United
States, 488 U.S. 361, 374 (1989).
To the extent that appellant is arguing that, in light of
the Apprendi, Blakely and Booker line of cases, Mistretta's holding
no longer has force, the Supreme Court has rejected such an
argument:
[T]he Commission's authority to identify the
facts relevant to sentencing decisions and to
determine the impact of such facts on federal
sentences is precisely the same whether one
labels such facts "sentencing factors" or
"elements" of crimes. Our decision in
Mistretta, 488 U.S., at 371, upholding the
validity of the delegation of that authority,
is unaffected by the characterization of such
facts, or by the procedures used to find such
facts in particular sentencing proceedings.
Booker, 543 U.S. at 242. The Court has stated that its holding in
Booker "does not call into question any aspect of our decision in
Mistretta." Booker, 543 U.S. at 242.
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C. Double Jeopardy Clause
Appellant argues that the sentencing court's application
of § 2L1.2(b) violated the double jeopardy clause because it
imposed an additional punishment for the prior state conviction for
which he was previously sentenced. Such challenges to enhanced
sentences based on prior offenses have been rejected by the Supreme
Court:
In repeatedly upholding such recidivism
statutes, we have rejected double jeopardy
challenges because the enhanced punishment
imposed for the later offense "is not to be
viewed as either a new jeopardy or additional
penalty for the earlier crimes," but instead
as "a stiffened penalty for the latest crime,
which is considered to be an aggravated
offense because a repetitive one."
Witte v. United States, 515 U.S. 389, 400 (1995)(citations
omitted).
Appellant argues that the Apprendi, Blakely, Booker line
of cases calls into question this reasoning because "[t]he prior
convictions are now recognized to be a full element of the
aggravated illegal reentry offense." Pro Se Brief, p. 32.
Appellant's argument has no merit because it is based on an
erroneous premise that prior convictions are now to be treated as
elements of the offense:
Apprendi's explicit exemption of sentence
enhancements based on prior criminal
convictions from the scope of its
constitutional holding left intact the Supreme
Court's earlier decision in Almendarez-Torres
v. United States, 523 U.S. 224 (1998). There,
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the Court endorsed treating prior convictions
as sentencing factors rather than elements of
federal criminal offenses. See Almendarez-
Torres, 523 U.S. at 226-27. "We have ruled
with a regularity bordering on the monotonous
that, given the explicit exception and force
of Almendarez-Torres, the rationale of
Apprendi does not apply to sentence-
enhancement provisions based upon prior
criminal convictions." United States v. Moore,
286 F.3d 47, 51 (1st Cir. 2002). Nothing in
Blakely or Booker alters the continuing
vitality of the Almendarez-Torres exception to
Apprendi.
United States v. Ivery, 427 F.3d 69, 74-75 (1st Cir. 2005)(emphasis
added), cert. denied, __ S. Ct. __, 2006 WL 236293 (Feb. 27, 2006);
see also Jimenez-Beltre, supra, at * 5 (noting that court is bound
to follow Almendarez-Torres until it is expressly overruled).
D. Ineffective Assistance of Counsel
Appellant argues that counsel was ineffective in failing
to argue to the sentencing judge that a downward departure from the
guidelines range was warranted to avoid sentencing disparities and
equal protection concerns resulting from the absence of a "fast
track" system for prosecuting and sentencing illegally re-entering
aliens in Puerto Rico. This court has rejected equal protection
challenges to the fast track program on the ground that similarly
situated defendants in fast track jurisdictions could receive a
four-level departure not available to defendants in non-fast track
jurisdictions. See United States v. Melendez-Torres, 420 F.3d 45,
52-53 (1st Cir. 2005). This court has also stated, in dicta, that
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[i]t is arguable that even post-Booker, it
would never be reasonable to depart downward
based on disparities between fast-track and
non-fast-track jurisdictions given Congress'
clear (if implied) statement in the PROTECT
Act provision that such disparities are
acceptable.
United States v. Martinez-Flores, 428 F.3d 22, 30 n. 3 (1st Cir.
2005), cert. denied, __ S. Ct. __, 2006 WL 236308 (Feb. 27, 2006);
See also Jimenez-Beltre, supra, (noting that [w]hether it would
even be permissible to give a lower sentence on the ground [of
"fast track" disparities] is itself an open question").
Defense counsel argued at sentencing for a departure
below the advisory guideline range, on the basis of various
personal circumstances of the defendant, including no history of
violent offenses, and the fact that his last conviction was over
ten years' old. In light of our precedents quoted above, the
argument that defense counsel was ineffective for failing to also
request a downward departure on "fast track" grounds is without
merit.
III. Other Potential Issues
Post-Booker, this court reviews sentences for
reasonableness. "Under the post-Booker approach, 'district courts,
while not bound to apply the Guidelines, must consult those
Guidelines and take them into account when sentencing,' subject to
review by the courts of appeals for 'unreasonableness.'"
Antonakopoulos, 399 F.3d at 76 (quoting Booker, supra). Our recent
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decision, Jimenez-Beltre, supra, provides guidance for the
determination and review of post-Booker sentences. Id. at * 1. A
review of the record in this case, and particularly the sentencing
transcript, reveals that the district court's sentencing of the
appellant was consistent with the approach we approved in Jimenez-
Beltre. The court first calculated the applicable guidelines
range. In doing so, the court stated several times that "its
reference to the Guidelines is on a purely advisory basis."
In addition to consulting the guidelines on an advisory
basis, the sentencing court also took into account the reasons
cited by defendant for imposing a sentence below the guidelines
range, and "all those factors that are found in 18 U.S.C. §
3553(a)." The court gave a "reasoned explanation" why the factors
cited by defendant did not warrant a sentence below the guidelines
range. Id. at * 3. Specifically, the court relied upon defendant's
record of prior convictions and his repeated illegal re-entries
into the country, and the need to promote respect for the law and
to avoid unwarranted sentencing disparities. On this record, an
argument that the district court acted unreasonably in declining to
impose a sentence below the guidelines range would be without
merit.
Counsel's motion to withdraw is granted, and appellant's
conviction and sentence are affirmed. See 1st Cir. R. 27(c).
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