United States v. Saul Agurcia Escobar , 155 F. App'x 459 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 21, 2005
No. 05-11181 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-80139-CR-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAUL AGURCIA ESCOBAR,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 21, 2005)
Before DUBINA, HULL and WILSON, Circuit Judges.
PER CURIAM:
Saul Agurcia Escobar appeals his 46-month sentence for the illegal re-entry
into the United States of an alien deported for the conviction of an aggravated
felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). Below, his sentence was
enhanced 16 levels, pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii), based on his prior
deportation after a conviction for a crime of violence. On appeal, Escobar argues
that the district court erred in (1) enhancing his sentence based on his prior
conviction for an aggravated felony and a crime of violence, which was not
charged in the indictment nor proven beyond a reasonable doubt at trial, in
violation of his rights under the Fifth and Sixth Amendments; and (2) treating the
United States Sentencing Guidelines (“Guidelines”) as advisory after he pled guilty
under mandatory Guidelines, in violation of his rights under the Ex Post Facto and
Due Process Clauses.
Escobar argues on appeal that the district court unconstitutionally enhanced
his sentence by increasing his base offense level based on facts – that his previous
conviction was an aggravated felony and a crime of violence – not charged in his
indictment, found by a jury, nor admitted in his plea. Escobar contends that
Shepard v. United States, 544 U.S. __, 125 S. Ct. 1254, 161 L.E.2d 205 (2005)
impliedly overruled the Supreme Court’s holding in Almendarez-Torres v. United
States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), which held that
prior convictions did not have to be presented in the indictment. Thus, according
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to Escobar, while the “fact of” a prior conviction falls within an exception to the
rule provided and applied in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348, 147 L. Ed. 2d 435 (2000), Blakely v. Washington, 542 U.S. 296, 124 S. Ct.
2531, 159 L. Ed. 2d 403 (2004), and United States v. Booker, 543 U.S. __, 125 S.
Ct. 738, 160 L. Ed. 2d 621 (2005), the “facts about” his prior conviction fall within
an exception to the exception and cannot be used to enhance his sentence. Escobar
further argues that his sentence violated his rights when the district court
retroactively applied the advisory Guidelines to a plea made under mandatory
Guidelines.
When a defendant objects to sentence enhancements in the district court, we
review his sentence on appeal de novo, but reverse only for harmful error. United
States v. Gallegos-Aguero, 409 F.3d 1274, 1276 (11th Cir. 2005) (per curiam)
(citation omitted). We have ruled that the Apprendi /Blakely /Booker cases did not
disturb the Almendarez-Torres conclusion that the government does not need to
allege in the indictment, and does not need to prove beyond a reasonable doubt,
that a defendant had prior convictions in order for the district court to use those
convictions for sentence enhancements. United States v. Shelton, 400 F.3d 1325,
1329 (11th Cir. 2005). Furthermore, while the Shepard Court may have cast
doubt on the Almendarez-Torres holding, the United States Supreme Court did not
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explicitly overrule it, so we are still bound by it. United States v. Camacho-
Ibarquen, 410 F.3d 1307, 1316 n.3 (11th Cir.) (per curiam), cert. denied, (U.S.
Oct. 11, 2005) (No.05-6178). Post-Booker, we reaffirmed that there is no Fifth or
Sixth Amendment violation when a district court enhances a sentence based on
prior convictions or determines whether a prior conviction is within the category of
offenses specified in § 2L1.2(b)(1)(A). Gallegos-Aguero, 409 F.3d at 1277.
Finally, we found no Ex Post Facto or Due Process Clause violations based on the
retroactive application of Booker’s remedial opinion making the Guidelines
advisory. United States v. Duncan, 400 F.3d 1297, 1306-08 (11th Cir.), cert.
denied, (U.S. Oct. 11, 2005) (No. 05-5467).
Accordingly, there is no Fifth or Sixth Amendment violation when a district
court enhances a sentence based on a prior conviction not pled in the indictment or
on a determination that a prior conviction falls within the category of offenses that
allows for an enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). See Gallegos-
Aguero, 409 F.3d at 1277. Moreover, there is no Ex Post Facto or Due Process
Clause violation based on the application of the Guidelines as advisory. See
Duncan, 400 F.3d at 1306-08.
Upon review of the pre-sentence investigation report, the record below, and
hearing transcripts, and upon consideration of the briefs of the parties, we find no
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reversible error. Therefore, Escobar’s sentence is affirmed.
AFFIRMED.
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