United States v. Fidel Santacruz-De La O ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10786 ELEVENTH CIRCUIT
Non-Argument Calendar SEPTEMBER 22, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 3:10-cr-00259-MMH-TEM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FIDEL SANTACRUZ-DE LA O,
a.k.a. Javier Olaguez,
a.k.a. Fidel Santa Cruz-Delao,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 22, 2011)
Before TJOFLAT, EDMONDSON and HULL, Circuit Judges.
PER CURIAM:
After pleading guilty, Fidel Santacruz-De La O (“Santacruz”) appeals his
36-month sentence for illegal reentry into the United States following a previous
deportation, in violation of 8 U.S.C. § 1326. After review, we affirm.
On appeal, Santacruz argues that the district court violated his Sixth
Amendment rights by enhancing his sentence based on his 1993 conviction for
armed burglary of a dwelling. See 8 U.S.C. § 1326(b)(2) (providing for a twenty-
year maximum imprisonment sentence if defendant’s initial deportation was
subsequent to an aggravated felony conviction); U.S.S.G. § 2L1.2(b)(1)(A)
(providing for a 16-level increase in the offense level if defendant was deported
after a felony conviction for a crime of violence). Santacruz contends the district
court could not rely on this prior conviction because it was not charged in his
indictment.1
Santacruz’s argument is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 118 S. Ct. 1219 (1998). We repeatedly have explained that, even
after Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and its
progeny Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), we are bound by
Almendarez-Torres until it is explicitly overruled by the Supreme Court. See, e.g.,
1
We review de novo a defendant’s preserved Sixth Amendment claim. See United States
v. Candelario, 240 F.3d 1300, 1304-06 (11th Cir. 2001).
2
United States v. Greer, 440 F.3d 1267, 1273-74 (11th Cir. 2006); United States v.
Gibson, 434 F.3d 1234, 1246-47 (11th Cir. 2006).
In any event, at sentencing, the district court did not resolve any factual
dispute as to the existence or nature of this prior conviction. Santacruz did not
object to the factual statement in his Presentence Investigation Report (“PSI”) that
he had a 1993 Florida conviction for armed burglary of a dwelling. Nor did he
argue that his armed burglary of a dwelling conviction was not an aggravated
felony or a crime of violence. Thus, Santacruz admitted the existence and nature
of his prior conviction for sentencing purposes. See United States v. Shelton, 400
F.3d 1325, 1330 (11th Cir. 2005) (stating that there is no statutory Booker error if
the defendant’s sentence is enhanced based on facts in the PSI to which the
defendant did not object at sentencing).2
For these reasons, the district court did not err in using Santacruz’s prior
armed burglary of a dwelling to determine Santacruz’s statutory maximum
sentence and advisory guidelines range.
2
At sentencing Santacruz, citing Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254
(2005), objected to the PSI’s use of a booking sheet to describe the underlying circumstances of
his prior armed burglary conviction and asked that this portion of the PSI be removed. The
district court responded, inter alia, that it was relying primarily on the judgment of conviction
and not the additional information in the PSI. On appeal, Santacruz does not raise his Shepard
argument, and thus abandons it. See United States v. Ford, 270 F.3d 1346, 1347 (11th Cir.
2001).
3
AFFIRMED.
4