United States v. Terence Dubose ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-10804 JUNE 27, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00028-CR-FTM-29DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRENCE DUBOSE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 27, 2006)
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Terrence DuBose appeals the 240-month sentence imposed
following his guilty plea to conspiracy with intent to distribute 50 grams or more
of cocaine base, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii), 846.
On appeal, Dubose argues that Almendarez-Torres v. United States, 523 U.S.
224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), was incorrectly decided and that
his prior convictions, which the district court used to apply a career offender
enhancement, should have been alleged in the indictment and proven beyond a
reasonable doubt to a jury.
Dubose’s position is precluded by our many decisions attesting to the
continued validity of Almendarez-Torres. See United States v. Greer, 440 F.3d
1267, 1273 (11th Cir. 2006) (“As we have said several times, unless and until the
Supreme Court specifically overrules Almendarez-Torres, we will continue to
follow it.”). Accordingly, we conclude that the district court did not err in using
Dubose’s prior convictions, which were not charged in his indictment, to apply a
career offender enhancement to his offense level.
Dubose further argues on appeal that the district court erred by failing to
attach anything to the PSI as required by Federal Rule of Criminal Procedure
32(i)(3)(C).
We review de novo legal questions concerning the Federal Rules of Criminal
Procedure. United States v. Noel, 231 F.3d 833, 836 (11th Cir. 2000).
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Federal Rule of Criminal Procedure 32(i)(3) provides that a sentencing court
“must - for any disputed portion of the presentence report or other controverted
matter - rule on the dispute or determine that a ruling is unnecessary . . . and must
append a copy of the court's determinations under this rule to any copy of the
presentence report made available to the Bureau of Prisons.” Fed. R. Crim. P.
32(i)(3)(B), (C).
The record here demonstrates that the district court did not attach a written
statement of its determinations to the presentence report. “The failure of the
district court to append a written record of its findings is a ministerial matter,
however, which can be remedied on remand without resentencing.” United States
v. Kramer, 943 F.2d 1543, 1553 (11th Cir. 1990).
For the above-stated reasons, we affirm Dubose’s sentence, but remand the
case to the district court for the limited purpose of attaching a copy of the
sentencing hearing transcript to the presentence report.
AFFIRMED AND REMANDED.
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