United States v. Eliseo Gomez-Madrigal , 171 F. App'x 326 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 20, 2006
No. 05-14281 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00033-CR-WS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELISEO GOMEZ-MADRIGAL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(March 20, 2006)
Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
The one-count indictment in this case alleged that on January 14, 2005,
appellant, an alien who had previously been deported, was found to be unlawfully
and voluntarily in the United States at a Shell Chemical LP facility in Mobile
County, Alabama, in violation of 8 U.S.C. § 1326(a) and (b). Appellant pled guilty
to the charge on March 29, 2005, and the district court scheduled his sentencing for
July 22, 2005.
The presentence investigation report (PSI) indicated that the applicable
Sentencing Guideline for the charged offense, U.S.S.C. § 2L1.2, fixed the base
offense level at eight. Prior to his previous deportation, appellant had been
convicted in a California court of an aggravated felony (he shot another person in
the abdomen with an assault rifle), so the PSI included a specific offense
characteristic, based on that conviction, that increased his base offense level by 16
levels. After giving appellant credit for acceptance of responsibility, the PSI set
appellant’s adjusted offense level at 21 and his criminal history category at II. This
yielded a sentence range of 41 to 51 months imprisonment. Appellant objected to
the 16-level enhancement, contending that because the fact of the California
conviction had not been alleged in the indictment, the enhancement was
unconstitutional. He readily acknowledged that the Supreme Court’s decision in
Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219 (1998),
effectively permitted the enhancement, but urged the court not to follow the
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decision because (in his attorney’s view) it is no longer good law. The court
overruled his objection and sentenced him to a prison term of 41 months. He now
appeals his conviction on the ground that the Sixth Amendment barred the court
from using his California conviction to enhance his base offense level because the
fact of the conviction had not been alleged in the indictment. He also contends that
the Sixth Amendment precluded the court from treating his California conviction
as a felony.
In Almendarez-Torres, the Supreme Court specifically addressed whether
“[8 U.S.C. § 1326(b)] defines a separate crime or simply authorizes an enhanced
penalty. . . [and concluded] that the subsection is a penalty provision, which simply
authorizes a court to increase the sentence for a recidivist. It does not define a
separate crime.” Almendarez-Torres v. United States, 523 U.S. 224, 226, 118 S.Ct.
1219, 1222, 140 L.Ed.2d 350 (1998). The Court went on to hold that “neither the
statute nor the Constitution requires the Government to charge the factor that it
mentions, an earlier conviction, in the indictment.” Id. at 226-27, 118 S.Ct at
1222.
We have held that Almendarez-Torres “was left undisturbed by Apprendi [v.
New Jersey, 530 U.S. 466, 489-90, 120 S.Ct. 2348, 2362-63 (2000)], Blakely[ v.
Washington], 542 U.S. 296, 303, 124 S.Ct. 2531, 2537 (2004)], and [United States
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v.] Booker[, 543 U.S. 220, 243-44, 125 S.Ct. 738, 755-756 (2005)].” United
States v. Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005). “Put another way,
because the prior-conviction exception remains undisturbed after Booker, a district
court does not err by relying on prior convictions to enhance a defendant’s
sentence.” United States v. Orduno-Mireles, 405 F.3d 960, 962 (11th Cir.), cert.
denied, 126 S.Ct. 223 (2005). Given this state of the law, we reject appellant’s
request that we vacate his sentence and remand the case for further proceedings
because the indictment did not allege the fact of his California conviction. We turn
then to his claim that the Sixth Amendment precluded the court from treating that
conviction as a felony.
Appellant contends that that conviction was under a “wobbler” California
sentencing scheme which gives the prosecutor or the court the discretion to treat an
offense as either a felony or a misdemeanor. He submits that given the Supreme
Court’s decisions in Blakely and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428(2002), the California scheme violates the Sixth and Fourteenth Amendment
guarantee of a jury trial as to the issues which make an offense a felony instead of
a misdemeanor. Consequently, the district court erred in considering his conviction
as a felony.
Appellant did not present this argument to the district court at his sentencing
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hearing; thus, we examine the argument for plain error. United States v.
Candelario, 240 F.3d 1300, 1306 (11th Cir. 2001). We correct “plain error only
where (1) there is an error; (2) the error is plain or obvious; (3) the error affects the
defendant’s substantial rights . . . ; and (4) the error seriously affects the fairness,
integrity, or public reputation of a judicial proceeding.” Orduno-Mireles, 405 F.3d
at 961.
In an attack on the constitutionality of a prior conviction the district court
used to increase a defendant’s sentence under the Armed Career Criminal Act, we
noted that:
an analogous provision of the Sentencing Guidelines . . . does not
authorize a sentencing court to inquire into the constitutional validity
of a prior conviction, unless the defendant adduces evidence sufficient
to demonstrate that the conviction used to enhance the sentence is
presumptively void. . . .the court construed the language of the
application note to signify that ‘courts can only exclude convictions
that have already been ruled invalid.’
United States v. Owens, 15 F.3d 995, 999 (11th Cir. 1994)(citation omitted). We
went on to hold that because collateral review was available to the defendant to
challenge the constitutionality of his previous convictions, “the district court d[ed]
not have the discretion to entertain challenges to prior convictions at sentencing. . .
.” Id. at 1001-02.
Turning to the bottom-line question of whether the district court committed
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plain error in this instance, we conclude that if the court committed error – and we
could hardly say that it did – the error was not plain, nor did it negatively affect
appellant’s substantial rights.
Having reached the foregoing conclusions, we affirm the district court’s
judgment.
SO ORDERED.
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