United States v. Francisco Castanon-Hernandez , 157 F. App'x 128 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 22, 2005
No. 05-12386 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00211-CR-ORL-19-DAB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO CASTANON-HERNANDEZ,
a.k.a. Francisco Perez,
a.k.a. Francisco Carriaga, etc.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 22, 2005)
Before BLACK, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Francisco Castanon-Hernandez appeals his 27-month sentence, imposed
after he pled guilty to illegal re-entry into the United States, in violation of 8
U.S.C. § 1326(a). At sentencing, Castanon-Hernandez faced an enhanced statutory
maximum, pursuant to 8 U.S.C. § 1326(b)(2), based on his prior conviction for an
aggravated felony (possession of cocaine). For the first time on appeal, Castanon-
Hernandez argues that the district court’s enhancement of his sentence violated
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000),
and its progeny,1 because his prior conviction was not alleged in the indictment,
admitted by him, or established beyond a reasonable doubt to a jury. After
thorough review of the record and careful consideration of the parties’ briefs, we
affirm.
Because Castanon-Hernandez raised no objection in the district court
regarding the enhancement of his sentence, we review the district court’s
sentencing determination for only plain error. See United States v. Shelton, 400
F.3d 1325, 1328-29 (11th Cir. 2005). Under the plain error test, before we can
correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3)
that affects substantial rights. United States v. Heath, 419 F.3d 1312, 1314 (11th
Cir. 2005). If the first three conditions are met, we may then exercise our
1
See United States v. Booker, 543 U.S.---, 125 S. Ct. 738, 756, 160 L. Ed. 2d 621 (2005);
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
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discretion to notice a forfeited error, but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.The Supreme Court has held that the government need not allege in the
indictment nor prove beyond a reasonable doubt the fact that a defendant had prior
convictions in order for a district court to enhance a defendant’s sentence based on
those convictions. Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.
Ct. 1219, 140 L. Ed. 2d 350 (1998). In Booker, the Court reiterated its holding in
Almendarez-Torres. See 125 S. Ct. at 756 (“Any fact (other than a prior
conviction) which is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a reasonable doubt.”)
(emphasis added)).
We have observed that the Almendarez-Torres decision “was left
undisturbed by Apprendi, Blakely, and Booker.” Shelton, 400 F.3d at 1329.
Castanon-Hernandez recognizes that we have consistently rejected the argument
that district courts err by basing a sentence enhancement on a prior conviction that
is neither proved beyond a reasonable doubt to a jury nor admitted by the
defendant. See, e.g., United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315-16
(11th Cir.), cert. denied, No. 05-6178 (Oct. 11, 2005); United States v. Orduno-
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Mireles, 405 F.3d 960, 962-63 (11th Cir.), cert. denied, No. 05-5141 (Oct. 3,
2005). We reject his invitation to revisit the issue. Pursuant to Almendarez-Torres
and our uniform line of cases applying it, the district court did not err in sentencing
Castanon-Hernandez based on his prior conviction for an aggravated felony.
AFFIRMED.
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