United States v. Isaac J. Reed , 156 F. App'x 212 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 29, 2005
No. 05-11076 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00050-CR-FTM-29SPC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISAAC J. REED,
a.k.a. Elderidge Percell Rolle,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 29, 2005)
Before BLACK, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Isaac J. Reed appeals his conviction and 188-month sentence for possession
with intent to distribute five grams or more of cocaine base, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(B)(iii). On appeal, Reed argues that the court erred
when it sentenced him pursuant to the career offender guideline, U.S. Sentencing
Guidelines Manual, § 4B1.1, because it increased his sentence based on findings
of facts that were neither charged in the indictment nor stipulated to at the plea
hearing. He argues under 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(2005) that the Fifth Amendment requires that his prior criminal offenses be
alleged in the indictment, and that the Sixth Amendment prohibits his sentence
from being increased based on facts never stipulated to nor proven to a jury. Reed
also argues that although the district court acknowledged that it was operating
under an advisory Guideline scheme, it erred when it proceeded to sentence Reed
as if the Guidelines were still mandatory.
Because Reed objected to an enhancement to his sentence in the district
court, we review the sentence de novo, and will reverse only if any error was
harmful. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005) (per curiam).
The government has the burden of showing that any error was harmless beyond a
reasonable doubt. Id.Although the parties disagree over whether Reed admitted his prior
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convictions at his sentencing hearing, we do not need to rule on this issue. In
Almendarez-Torres v. United States, 523 U.S. 224, 228-47, 118 S. Ct. 1219, 1223-
33, 140 L. Ed. 2d 350 (1998), 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 for a district court to use those convictions for
purposes of enhancing a sentence.
Reed suggests that decisions subsequent to Almendarez-Torres, such as
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000);
Blakely, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403; and Shepard v. United
States, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005), cast doubt over Almendarez-
Torres’s validity. We have held, however, that, until the Supreme Court explicitly
overrules Almendarez-Torres, it is still law that is binding upon this Court. United
States v. Camacho-Ibarquen, 410 F.3d 1307, 1316 n.3 (11th Cir. 2005) (per
curiam) (citations omitted), cert. denied, ___ S. Ct. ___ (U.S. Oct. 11, 2005); see
also, e.g., United States v. Orduno-Mireles, 405 F.3d 960, 963 (11th Cir. 2005)
(citations omitted). Because the Supreme Court has not overruled Almendarez-
Torres, it still controls the outcome of this case. Accordingly, the district court
committed no Blakely/Booker error in considering Reed’s prior convictions at
sentencing.
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Furthermore, we reject Reed’s claims that the district court imposed an
unreasonable sentence in excess of the statutory maximum without proper
consideration of the sentencing factors in 18 U.S.C. § 3553(a). We have held that
in conducting a review for reasonableness, “nothing in Booker or elsewhere
requires the district court to state on the record that it has explicitly considered
each of the § 3553(a) factors or to discuss each of the § 3553(a) factors.” 1 United
States v. Scott, 11th Cir. 2005, ___ F.3d ___, (No. 05-11843, Sept. 27, 2005). As
to what constitutes the statutory maximum in a post-Booker era, we have stated
that because Booker made the Guidelines advisory, the Guidelines’ various top
ranges no longer constitute “little relevant maximums,” leaving “as the only
maximum sentence the one set out in the United States Code.” 2 United States v.
Duncan, 400 F.3d 1297, 1303 (11th Cir.), cert. denied, ___ S. Ct. ___ (U.S. Oct.
11, 2005). We hold that the district court adequately considered the relevant
factors in 18 U.S.C. § 3553(a) when the court stated that the sentence was
appropriate based on all of the facts of the case and the amount of drugs
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Section 3553(a) provides that district courts imposing a sentence must first consider,
inter alia, the nature and circumstances of the offense; the history and characteristics of the
defendant; the need for the sentence to reflect the seriousness of the offense, promote respect for
the law, and provide just punishment for the offense; and the kinds of sentences and sentencing
range the Guidelines established. See 18 U.S.C. § 3553(a).
2
The statutory maximum sentence for Reed would be 40 years, which is well above his
actual sentence. 21 U.S.C. § 841(b)(1)(B).
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attributable to the defendant.
Finally, the district court did not treat the Guidelines as mandatory in
violation of Booker. Booker, 545 U.S. ___, 125 S. Ct. at 756-57. The district court
specifically acknowledged that it could only consider the Guidelines to be
advisory. Furthermore, as stated supra, the district court appropriately based the
sentence upon consideration of the factors in 18 U.S.C. § 3553(a).
Based on a review of the record and the parties’ briefs, we discern no
reversible error. Accordingly, we affirm Reed’s conviction and sentence for
possession with intent to distribute five grams or more of cocaine base, in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii).
AFFIRMED.
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