United States v. Michael , 430 F. App'x 838 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 16, 2011
No. 10-15871 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 9:09-cr-80084-KAM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH NESTOR MICHEL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 16, 2011)
Before BARKETT, HULL and FAY, Circuit Judges.
PER CURIAM:
After pleading guilty, Joseph Michel appeals his 87-month sentence for
illegal reentry of a deported alien, in violation of 8 U.S.C. § 1326(a) and (b)(2).
After review, we affirm.
On appeal, Michel argues that the district court violated his Fifth and Sixth
Amendment rights by imposing a 16-level guidelines enhancement, pursuant to
U.S.S.G. § 2L1.2(b)(1)(A), based upon Michel’s prior felony conviction for armed
robbery with a weapon. Michel contends that the district court could not rely on
this prior conviction because it was not charged in Michel’s indictment or found
by a jury beyond a reasonable doubt.
However, as Michel acknowledges, this 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., 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).
Michel argues that Almendarez-Torres permits a sentencing court to find
only the mere fact of a conviction and that Apprendi, Booker, and Shepard v.
United States, 544 U.S. 13, 125 S. Ct. 1254 (2005), bar judge-made findings about
the factual nature of the prior convictions. This Court has already rejected this
2
argument. See Greer, 440 F.3d at 1275 (explaining that Apprendi, Booker and
Shepard do not “forbid a judge from determining the factual nature of a prior
conviction,” but instead “restrict[] the sources or evidence that a judge (instead of
a jury) can consider in making that finding” (quotation marks omitted)).
In any event, at sentencing the district court did not resolve any disputed
facts related to Michel’s prior conviction for armed robbery with a weapon.
Michel objected to the 16-level enhancement only on constitutional grounds.
Michel did not object to the fact of his prior conviction (paragraph 26 of his
Presentence Investigation Report (“PSI”) or argue that his prior conviction did not
qualify as a “crime of violence” for purposes of U.S.S.G. § 2L1.2(b)(1)(A). Thus,
Michel 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)
(explaining that there is no statutory Booker error where the defendant’s sentence
was enhanced based on facts to which the defendant did not object in the PSI at
sentencing); United States v. Burge, 407 F.3d 1183, 1191 (11th Cir. 2005).
For all these reasons, the district court did not err in using Michel’s prior
armed robbery with a weapon conviction in calculating Michel’s advisory
guidelines range.
AFFIRMED.
3