United States v. Antonio Hernandez-Martinez , 154 F. App'x 778 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 15, 2005
No. 05-11397
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00188-CR-19JGG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO HERNANDEZ-MARTINEZ,
a.k.a. Antonio Martinez-Hernandez,
a.k.a. Antonio Gabone,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 15, 2005)
Before DUBINA, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Appellant Antonio Hernandez-Martinez appeals his 70-month sentence for
illegal re-entry into the United States, in violation of 8 U.S.C. §§ 1326(a) and (b).
The two issues on appeal are: (1) whether the district court violated Hernandez-
Martinez’s Fifth and Sixth Amendment rights in enhancing his base offense level,
pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii), based on his prior conviction for
robbery, which was not charged in his indictment or admitted, and (2) whether the
district court erred in denying Hernandez-Martinez’s motion for a downward
departure presented to avoid a sentencing disparity between defendants who are
sentenced under the fast-track program 1 and those who have no such program in
their districts.
I. Enhancement for a Prior Conviction, U.S.S.G. § 2L1.2(b)(1)(A)(ii)
Hernandez-Martinez argues that his sentence is unconstitutional because the
court sentenced him based upon facts that were not charged in the indictment,
found by a jury, or admitted at the plea colloquy. While he concedes that we have
held that Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140
L. Ed. 2d 350 (1998) is still valid law, Hernandez-Martinez maintains that its
1
As the First Circuit recently explained, U.S.S.G. § 5K3.1 provides for the application of
downward departures in districts that have implemented early disposition or “fast-track”
programs. United States v. Melendez-Torres, 420 F.3d 45, 52 (1st Cir. 2005). Fast-track
programs enable districts to accommodate a large number of immigration cases by allowing
district courts to grant up to a four-level downward departure in exchange for the waiver of
certain procedural rights by the defendant. Id. “[T]hese programs are authorized only when they
are clearly warranted by local conditions within a particular district.” Id.2
narrow holding is distinguishable from the facts of his case because (1) he did not
admit to his prior robbery conviction, and (2) he did not stipulate that his prior
convictions constituted “crimes of violence” or “aggravated felonies.” Hernandez-
Martinez also contends that we should not apply Almendarez-Torres to his case
because (1) it has been discredited by the Supreme Court, and (2) our holding in
Jefferson County v. Acker, 210 F.3d 1317, 1320 (11th Cir. 2000), concerning when
we should follow Supreme Court cases that are distinguishable, establishes that we
are free to apply the reasoning of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348, 147 L. Ed. 2d 435 (2000), to his case. Hernandez-Martinez further asserts
that, because the court added three points to his criminal history score based on its
finding that he committed the instant offense while on supervised release and
within two years of his release from imprisonment, his sentence violated United
States v. Booker, 543 U.S., 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005) and his
constitutional rights.
Hernandez-Martinez properly preserved his claim in the district court by
objecting under Apprendi, Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531,
159 L. Ed. 2d 403 (2004), and Booker to the use of his prior conviction to enhance
his sentence. See United States v. Dowling, 403 F.3d 1242, 1245-46 (11th Cir.),
cert. denied, ___ S. Ct. ___, (U.S. Oct. 11, 2005) (No. 05-6234) (explaining the
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ways an appellant can preserve a Booker claim). Since Hernandez-Martinez timely
raised a Booker objection in the district court, we review the claim on appeal de
novo, but reverse only for harmful error. See United States v. Paz, 405 F.3d 946,
948 (11th Cir. 2005).
Under U.S.S.G. § 2L1.2(b)(1)(A)(ii), a defendant’s base offense level may
be increased by 16 where the defendant has been previously deported after “a
conviction for a felony that is . . . a crime of violence . . . .” The commentary to
§ 2L1.2 includes robbery within the definition of “crime of violence.” U.S.S.G.
§ 2L1.2, comment. (n.1(B)(iii)).
In Almendarez-Torres, the Supreme Court held that the government need not
allege in its indictment, and need not prove beyond a reasonable doubt, that a
defendant had prior convictions in order for a district court to use those convictions
for purposes of enhancing a sentence. Almendarez-Torres, 523 U.S. at 247, 118 S.
Ct. at 1233. The Supreme Court declined to revisit Almendarez-Torres in
Apprendi, holding that, “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S.
at 490, 120 S. Ct. at 2362-63. In Booker the Supreme Court recently reaffirmed its
holding in Apprendi. Booker, 543 U.S. at ____, 125 S. Ct. at 756. We have
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clarified that the Supreme Court's decision in Almendarez-Torres "was left
undisturbed by Apprendi, Blakely, and Booker." United States v. Shelton, 400 F.3d
1325, 1329 (11th Cir. 2005). Moreover, we have noted that, while recent
decisions, including Shepard v. United States, 544 U.S. ____, 125 S. Ct. 1254, 161
L. Ed. 2d 205 (2005), may arguably cast doubt on the future prospects of
Almendarez-Torres, the Supreme Court has not explicitly overruled Almendarez-
Torres, and, as a result, we must follow Almendarez-Torres. United States v.
Camacho-Ibarquen, 410 F.3d 1307, 1316 n.3 (11th Cir.), cert. denied, ___ S. Ct.
___ (U.S. Oct. 11, 2005) (No. 05-6178).
In Acker we explained that where “the facts of a gravely wounded Supreme
Court decision do not line up closely with the facts before us--if it cannot be said
that decision "directly controls" our case--then, we are free to apply the reasoning
in later Supreme Court decisions to the case at hand. We are not obligated to
extend by even a micron a Supreme Court decision which that Court itself has
discredited.” Acker, 210 F.3d at 1320.
Despite Hernandez-Martinez’s argument to the contrary, whether his case is
factually distinguishable from Almendarez-Torres is irrelevant because Hernandez-
Martinez was sentenced under an advisory Guidelines scheme and, therefore, the
court properly could have made factual findings that were not admitted to, found
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by a jury, or charged in the indictment. See United States v. Chau, No. 05-10640,
___ F.3d ___ (11th Cir. Sept. 27, 2005) (holding that nothing in Booker or the
Constitution prohibits a court from “making factual determinations that go beyond
a defendant’s admissions” in an advisory Guidelines system). Hernandez-Martinez
was sentenced on February 28, 2005, after the Supreme Court explained in Booker
that the Guidelines were advisory and, furthermore, the district court repeatedly
stated that it was aware of the advisory nature of the Guidelines. Booker, 543 U.S.
at ____, 125 S. Ct. at 756.
Additionally, even assuming that the court used facts other than Hernandez-
Martinez’s prior convictions in calculating his criminal history score, there could
be no constitutional error because the court sentenced him pursuant to advisory
Guidelines. Therefore, Hernandez-Martinez’s arguments are without merit
because (1) we have explicitly held that Almendarez-Torres is binding precedent,
and (2) even if we were not obligated, under Acker, to follow Almendarez-Torres,
the fact that the court sentenced Hernandez-Martinez under an advisory Guidelines
scheme precludes a finding of any constitutional Booker error.
II. Downward Departure
Hernandez-Martinez argues on appeal that the district court improperly
refused to grant his motion for a downward departure because the court based its
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decision on his criminal history, which is a fact that courts in districts employing
fast-track programs do not consider when sentencing defendants similarly situated
to Hernandez-Martinez. He contends that the result of this sentencing disparity is
contrary to the purpose of the Guidelines that similarly situated defendants should
receive similar sentences throughout the districts. He further asserts that the
court’s refusal to depart violated his right to equal protection of the laws, under the
Fifth Amendment, because other similarly situated defendants are sentenced
pursuant to the fast-track program simply because of the location of their arrest.
Finally, he maintains that, whether under strict scrutiny or rational basis review,
the sentencing disparity violated his constitutional rights.
Generally, we lack jurisdiction to review a district court’s denial of a motion
for a downward departure made pursuant to the Guidelines, unless the court
misapprehended its authority to apply the departure. United States v. Winingear,
422 F.3d 1241, 1245 (11th Cir. 2005). Thus, to the extent Hernandez-Martinez’s
motion was made as a traditional departure motion under the Guidelines2, the court
here did not misapprehend its authority to depart, as evidenced by the court’s
explanation of the factors on which it based its conclusion that a departure was not
warranted in Hernandez-Martinez’s case. However, we may conduct a de novo
2
The court may depart from the guideline range under § 5K2 for circumstances not
adequately taken into consideration in formulating the guidelines. See U.S.S.G. § 5K2(a).
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review of an otherwise final sentence if the sentence was imposed in violation of
the law. 18 U.S.C. § 3742(a)(1); United States v. Manella, 86 F.3d 201, 203 (11th
Cir. 1996). Because Hernandez-Martinez argues that his sentence violated his
constitutional rights, we have jurisdiction, under 18 U.S.C. § 3742(a)(1), to
determine whether the sentence was imposed in violation of the law.
On the facts here, and assuming without deciding, as the district court did,
that Hernandez-Martinez would have been eligible for sentencing under a fast-
track program or should be considered for a departure to eliminate any disparity,
the factors in his case suggest that a downward departure is still not warranted.
Hernandez-Martinez had twice before been deported from the United States, had
committed burglary and robbery, and had committed the instant offense while he
was on supervised release and within two years of his last release from prison.
Based on Hernandez-Martinez’s criminal history, then, a downward departure was
not appropriate, even under a fast-track program.
For the foregoing reasons, we conclude that the district court did not violate
Hernandez-Martinez’s constitutional rights in enhancing his sentence based on his
prior robbery conviction nor did the court err in denying his motion for a
downward departure. Accordingly, we affirm Hernandez-Martinez’s sentence.
AFFIRMED.
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