United States v. Garcia , 135 F. App'x 436 ( 2005 )

PER CURIAM.

Alexis Garcia appeals from a sentence imposed following his guilty plea to one count of possessing with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(c). Garcia was sentenced as a career offender, pursuant to U.S.S.G. § 4B1.1, based upon his prior felony convictions in federal court for drug trafficking offenses and crimes of violence. After Garcia was sentenced, but before he filed his original appellate brief, the Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). While his appeal was pending, the Supreme Court decided United States v. Booker, 543 U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). At our invitation, the parties filed supplemental briefs in light of Booker. Garcia raises two Blakely/Booker issues on appeal, which he concedes were not preserved below. Having failed to satisfy the plain error standard set forth in United States v. Antonakopoulos, 399 F.3d 68 (1st Cir.2005), Garcia is not entitled to the relief he seeks.

I. Blakely Error

Garcia’s pre-Booker argument was that Blakely applied to the federal sentencing guidelines and that his sentence enhancement pursuant to U.S.S.G. § 4B1.1, as a career offender, was invalid under Blakely because the fact of the requisite prior convictions was not submitted to a jury or proven beyond a reasonable doubt.¹

Even under pre-Boo/cer law, Garcia’s Blakely claim is without merit because “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); see also United States v. Stearns, 387 F.3d 104, 107 (1st Cir.2004) (holding that the fact of a prior conviction is beyond the ambit of Blakely), cert. denied, — U.S. -, 125 S.Ct. 1614, 161 L.Ed.2d 289 (2005). Post-Booker it remains the law that “prior criminal convictions are not facts that a jury must find beyond a reasonable doubt.” United States v. Lewis, 406 F.3d 11, 20 (1st Cir.2005).² Therefore, there was no Blakely error.

Moreover, this circuit has held that “[t]he error under Booker is ... that the defendant was sentenced under a mandatory Guidelines system,” Antonakopoulos, 399 F.3d at 76, not “that the judge, based on facts found by him, had increased the sentence beyond that authorized solely by the facts found by the jury or admitted by the defendant.” Id. at 79. “In Antonakopoulos, we ‘rejected] the view that a Blakely [Sixth Amendment] error automatically requires a Booker remand’ for resentencing. 399 F.3d at 79. We were very clear that the judge’s finding of ‘additional facts which raised the sentence authorized solely by the jury verdict or guilty pleas ... is insufficient to meet the third and fourth Olano prongs on plain-error review.’ Id. Instead, this court must find a reasonable probability that advisory Guidelines would have produced a more favorable sentence.” United States v. Brennick, 405 F.3d 96, 102 n. 3 (1st Cir.2005).

II. Post-Booker Claim

Garcia’s second argument, set forth in his supplemental brief, is that his sentence violated Booker because it was imposed under a mandatory Guidelines regime. This claim satisfies the first two Olano prongs. See Antonakopoulos, 399 F.3d at 77. However, to proceed, Garcia “must point to circumstances creating a reasonable probability that the district court would impose a different sentence more favorable to the defendant under the new ‘advisory Guidelines’ Booker regime.” Id. at 75. He has not satisfied that requirement.³

Garcia faces an uphill battle because of the circumstances of his sentencing. First, the sentencing court imposed a sentence of 180 months, at the middle of the applicable guideline sentencing range (168-210 months), despite the government’s recommendation that he be sentenced at the bottom of that range. Second, the sentencing judge indicated in several comments that the sentence was, if anything, too lenient. The court specifically stated to Garcia at sentencing that the long sentence was justified by the “need to take you off the street, ... to protect the public from people like you.” That disposes of his claim.

Garcia’s conviction and sentence are affirmed. See 1st Cir. R. 27(c).

1 . In his original brief, Garcia also argued that the sentencing judge’s findings regarding drug quantity and possession of a firearm violated Blakely. Because the district court sentenced Garcia under § 4B1.1 as a career offender, however, the drug quantity and possession of a firearm were irrelevant to the calculation of his sentence.

2 . Garcia has not argued that the Supreme Court’s recent decision in Shepard v. United States, - U.S. -, 125 S.Ct. 1254, 161 L.Ed.2d 205 (U.S. March 7, 2005), overruled the Almendarez-Torres exception. This court has not addressed the issue, but the circuits which have done so have held that "the Almendarez-Torres exception for prior convictions still stands.” United States v. Schlifer, 403 F.3d 849, 852 (7th Cir.2005); see also United States v. Mattix, 404 F.3d 1037 (8th Cir.2005); United States v. Moore, 401 F.3d 1220 (10th Cir.2005).

3 . Garcia argued that no prejudice showing should be required because the Booker error is "structural.” However, as he concedes, that argument has been expressly rejected by this court. See Antonakopoulos, 399 F.3d at 80 n. 11. We decline Garcia’s invitation to ignore Antonakopoulos. Absent unusual circumstances not present here, panels of this court are bound by prior circuit decisions. See United States v. Rodriguez, 311 F.3d 435, 438-39 (1st Cir.2002).