United States v. Mario Luna-Mora ( 2006 )

CORRECTED [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 05-11926 ELEVENTH CIRCUIT
MAY 09, 2006
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 99-00694-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO LUNA-MORA,
a.k.a. Mario Luna Mora,
a.k.a. Hector Bernal-Soto,
Defendant-Appellant.
________________________
No. 05-11928
Non-Argument Calendar
________________________
D. C. Docket No. 04-00563-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR BERNAL-SOTO,
a.k.a. Mario Luna Mora,
Defendant-Appellant.
_________________________
Appeals from the United States District Court
for the Northern District of Georgia
_________________________
(May 9, 2006)
Before ANDERSON, DUBINA and HULL, Circuit Judges.
PER CURIAM:
This opinion consolidates and decides two appeals perfected by Hector
Bernal-Soto a.k.a. Marion Luna-Mora (“Bernal”). In United States v. Luna-Mora,
No. 05-11928, Bernal appeals his forty-six month sentence for illegally reentering
the United States without authorization after deportation subsequent to a
conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b). In
United States v. Hector Bernal-Soto, No. 05-11926, Bernal appeals his eight month
sentence to be served consecutively with the first, for violation of supervised
release from his original 2000 conviction for being an alien previously deported
and present in the United States without authorization, in violation 8 U.S.C.
§ 1326.
On appeal, Bernal argues with respect to No. 05-11928 that the district court
deprived him of his Sixth Amendment right to a jury trial and a standard of proof
beyond a reasonable doubt on every element of the offense, including the fact of
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the prior conviction for an aggravated felony. With respect to No. 05-11926 and
his eight month sentence for violation of supervised release, he argues that that
sentence was unreasonable because it failed to credit him with sixteen months he
had served for an allegedly improper revocation sentence. He further argues that
the district court denied him due process and imposed an unreasonable sentence
because the court failed to consider or specify the factors listed in 18 U.S.C. §
3553(a).
I.
At sentencing, Bernal withdrew his challenge under United States v. Booker,
543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) as it applied to how his prior
conviction was characterized. As a result, direct review is limited to plain error.
See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied, 125
S.Ct. 2935 (2005). Plain error review asks whether there is: (1) an error, (2) that is
plain, and (3) that affects substantial rights. If all three are found, we may exercise
discretion only if the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Rodriguez, 398 F.3d at 1298.
In United States v. Orduno-Mireles, 405 F.3d 960, 961 (11th Cir.), cert.
denied, 126 S.Ct. 223 (2005), we considered a defendant’s claim that the district
court erred when it enhanced his sentence under U.S.S.G. § 2L1.2(b)(1)(A), and
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(2), because the enhancement pursuant to § 1326 was based on facts that were
neither charged in the defendant’s indictment nor proven to a jury. In that case, we
reiterated our view that the Supreme Court, in Booker, “left undisturbed its holding
in Almendarez–Torres [523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998)],
that recidivism is not a separate element of an offense that the government is
required to prove beyond a reasonable doubt.” Orduno-Mireles, 405 F.3d at 962.
Indeed, we have held that “Almendarez–Torres remains the law until the Supreme
Court determines that Almendarez–Torres is not controlling precedent,” and that it
was not plain error for the district court to apply it. Orduno-Mireles, 405 F.3d at
963.
Bernal’s claim that the district court violated his Sixth Amendment right to a
jury trial by sentencing him under 8 U.S.C. § 1326(b)(2), and U.S.S.G.
§ 2L1.2(b)(1)(B), based on the fact of a prior conviction that neither was alleged in
the indictment nor proven to a jury beyond a reasonable doubt, fails because the
prior conviction was not an element of his illegal reentry charge. Because
Almendarez-Torres is still controlling law, the district court did not err when it
imposed a sentence pursuant to 8 U.S.C. § 1326(b)(2), and U.S.S.G.
§ 2L1.2(b)(1)(B). Upon review of the briefs of the parties and the relevant case
law, we discern no reversible error and affirm.
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II.
a. Credit for time served
To the extent that Bernal is attempting to challenge the district court’s
refusal to grant him credit for time served in a Dekalb County jail for violating his
term of supervised release imposed for his 2000 conviction (United States v. Luna-
Mora, No. 1:99-CR-694), he may not do so here. The Bureau of Prisons, as
opposed to the district courts, is authorized to compute sentence credit awards after
sentencing. United States v. Wilson, 503 U.S. 329, 333-35, 112 S.Ct. 1351,
1354-55, 117 L.Ed.2d 593 (1992) (construing 18 U.S.C. § 3585(b)(2), the relevant
statute regarding credit for time served). As a result, "a federal prisoner
dissatisfied with computation of his sentence must pursue the administrative
remedy available through the federal prison system before seeking judicial review
of his sentence." United States v. Flanagan, 868 F.2d 1544, 1546 (11th Cir.1989)
(interpreting § 3585(b)'s predecessor, § 3568). "A claim for credit for time served
is brought under 28 U.S.C. § 2241 after the exhaustion of administrative
remedies." United States v. Nyhuis, 211 F.3d 1340, 1345 (11th Cir.2000).
"Exhaustion of administrative remedies is jurisdictional." Gonzalez v. United
States, 959 F.2d 211, 212 (11th Cir.1992) (addressing denial of a § 2241 petition).
Because the record fails to show that Bernal has exhausted his administrative
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remedies for review of credit received for time served, this issue is not ripe for
judicial review. Accordingly, we decline to exercise jurisdiction in this regard.
b. Sentence for revocation of supervised release
Upon finding that a defendant violated supervised release, the district court
may revoke the term of supervised release and impose a term of imprisonment
after considering various factors set out in 18 U.S.C. § 3553(a). 18 U.S.C.
§ 3583(e).1 The term imposed cannot exceed the statutory maximum, which is
determined by grade of the violation. See id. Where the original offense was a
Class B felony, a court may not require a defendant to serve more than three years
in prison. 18 U.S.C. § 3583(e)(3). A Grade B violation is one constituting any
federal, state, or local offense, not described in U.S.S.G. § 7B1.1(a)(1), punishable
by a term of imprisonment exceeding one year. U.S.S.G. § 7B1.1(a)(2).
The sentencing court “shall state in open court the reasons for its imposition
of a particular sentence, and if the sentence . . . is not of the kind, or is outside the
range, described in [§ 3553(a)(4)], the specific reason for imposition of a sentence
different from that described.” 18 U.S.C. § 3553(c)(2). In reviewing a defendant’s
sentence for unreasonableness, however, we have held that “nothing in Booker or
1
We need not decide in this case whether our review of the district court sentence
upon revocation is for abuse of discretion, or for reasonableness pursuant to Booker. If the former,
we conclude there is no abuse of discretion; if the latter, we conclude that the sentence was not
unreasonable. For simplicity, we refer hereafter to abuse of discretion.
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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.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).
The district court did not abuse its discretion by sentencing Bernal to eight
months in prison for violating the terms of his supervised release. First, Bernal did
not object to the indictment charging him with being an alien found in the United
States after having been removed from the country after a conviction for an
aggravated felony. Second, Chapter Seven provides for a 12 to 18 month term of
imprisonment when a defendant’s supervised release is revoked for committing a
Grade B violation and the defendant has a criminal history category of IV.
U.S.S.G. § 7B1.1(a)(2), and § 7B1.4(a). Bernal’s eight month sentence was
therefore well within the court’s statutory power as Bernal’s original offense was a
Class B felony. See 18 U.S.C. § 3583(e)(3). Third, although the district court
began with an eighteen month sentence, which was within the advisory guideline
range for Bernal’s particular offense, ultimately Bernal was given ten months
credit for the sixteen months he served in Dekalb County jail, and the remaining
eight month sentence was to be served consecutive to the sentence for the 2004
illegal reentry conviction. See 18 U.S.C. § 3553(a)(1). As a result, the eight
month consecutive sentence was well below the recommended 12 to 18 month
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guideline range. Furthermore, the record reflects that the district court considered
the goals of and the advisory nature of guideline range. See 18 U.S.C. §
3553(a)(4); U.S.S.G. § 7B1.4(a). Thus, the record sufficiently demonstrates that
the district court considered the § 3553(a) sentencing factors and the advisory
guidelines range.
In sum, we conclude that the eight month sentence was below the sentencing
range, the court had the statutory authority to impose the sentence, the court stated
its reasons for departing downward when it credited Bernal with time served, and
the sentence was supported by the record. We find neither an abuse of discretion
nor any unreasonableness in the verdict. Accordingly, we affirm.
AFFIRMED.
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