United States v. Armando Rivera, Jr. , 189 F. App'x 933 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-16989 JULY 18, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 05-14007-CR-JEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARMANDO RIVERA, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 18, 2006)
Before CARNES, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Armando Rivera, Jr., appeals his 175-month concurrent sentences, imposed
after he pled guilty to two counts of possession of a firearm and two counts of
possession of ammunition by a convicted felon, a violation of 18 U.S.C.
§§ 922(g)(1) and 924(e)(1). On appeal, he argues that the district court violated his
Fifth and Sixth Amendment rights because the prior convictions for violent
felonies that required classifying him as an armed career criminal were neither
charged in the indictment nor proven to a jury and because mandatory minimum
sentences are unconstitutional. For the reasons set forth more fully below, we
affirm.
A grand jury returned a four-count indictment charging Rivera with four
counts of possession of a firearm or ammunition by a convicted felon in violation
of 18 U.S.C. § 922(g)(1). With respect to counts two through four, the indictment
also charged Rivera under 18 U.S.C. § 924(e), which provides for a mandatory
minimum 15-year sentence for a defendant who is convicted under § 922(g)(1) and
who has three previous convictions for violent felonies or serious drug offenses.
18 U.S.C. § 924(e)(1). The indictment named only one prior conviction for the
state crime of armed bank robbery.
At Rivera’s plea colloquy, the government informed him that, if he were
found to be a career criminal, he would be subject to a mandatory prison term of at
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least 15 years. Rivera agreed, and added that, if he were not found to be a career
criminal, his statutory maximum term of imprisonment would be only ten years.
The government indicated that its position was that Rivera was an armed career
criminal, and, therefore, subject to a minimum of 15 years and a maximum of life
imprisonment under 18 U.S.C. § 924(e), which Rivera understood.
The government then offered the following factual proffer. On November 5,
2004, while under probation supervision, a probation officer, with the assistance of
the Highlands County Sheriff’s office, executed a warrantless search at Rivera’s
residence, which was authorized by the terms of Rivera’s probation. The officers,
while performing their search, noticed a loaded handgun as well as a white powder,
later identified as cocaine powder, in a bedroom. The handgun and eight rounds of
ammunition seized from the gun formed the basis for Counts One and Two. The
officers also observed a .9 millimeter semi-automatic hand gun, concealed inside
two garden-style gloves. The clip of the gun contained 12 rounds. The gun and
rounds formed the basis for Counts Three and Four. Both firearms and all
ammunition was found to have been manufactured outside the state of Florida,
where the crime occurred. Rivera agreed to all of the facts as presented by the
government. The court accepted Rivera’s plea as knowing and voluntary.
Pursuant to § 4B1.4(a), Rivera was found to be an armed career criminal
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because he was subject to an enhanced sentence under 18 U.S.C. § 924(e) for
having at least three prior convictions for violent felonies. The PSI named the
following prior convictions: (1) February 7, 1990, for armed burglary, armed
robbery, false imprisonment, and aggravated assault; (2) February 7, 1990, for a
separate count of armed robbery; and (3) June 25, 1993, for armed robbery. The
PSI further noted that the firearms were possessed in connection with the
controlled substance violations of possession of cocaine with intent to sell within
1,000 feet of a school and possession of cannabis with intent to sell within 1,000
feet of a school. Thus, pursuant to U.S.S.G. § 4B1.4(b)(3)(A), Rivera’s offense
level was set at 34. He received a three-level reduction for acceptance of
responsibility, pursuant to U.S.S.G. § 3E1.1(a) and (b), for a total offense level of
31. Based on his armed career criminal status, Rivera was placed in criminal
history category VI, which, at offense level 31, provided for a recommended
sentencing range of 188 to 235 months. The mandatory minimum sentence was 15
years.
Rivera objected to his classification as an armed career criminal because the
prior convictions that qualified him as an armed career criminal were neither
alleged in the indictment nor admitted by the defendant at his plea, and, therefore,
the district court did not have the constitutional authority to increase the maximum
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penalty of ten years authorized for a violation of 18 U.S.C. § 922(g)(1).
Additionally, Rivera filed a written objection, acknowledging that “controlling
precedent [was] adverse to his position,” but arguing that, under United States v.
Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed. 2d 621 (2005) and Shepard v.
United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), the district
court no longer had the constitutional authority to find that he had three prior
convictions for a violent felony or serious drug offense so as to enhance his
sentence under 18 U.S.C. § 924(e). Rivera argued that such findings were facts
“about a prior conviction,” prohibited by Shepard, if not also by the implicit
overruling of Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219,
140 L.Ed.2d 350 (1998). Moreover, Rivera argued that his case was
distinguishable from cases such as Harris v. United States, 536 U.S. 545, 122 S.Ct.
2406, 153 L.Ed.2d 524 (2002), because here, the 180-month mandatory minimum
under 18 U.S.C. § 924(e) exceeded the otherwise 120-month maximum sentence
provided for by 18 U.S.C. § 924(a)(2). Accordingly, Rivera requested that he be
sentenced without application of § 924(e)’s mandatory minimum sentence. Rivera
also requested that his sentence be adjusted 13 months to reflect time served due to
an undischarged term of imprisonment as of November 5, 2004.
At sentencing, the district court overruled Rivera’s objection to being
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classified as an armed career criminal, finding that “the law is settled that you can,
in fact, be sentenced as an armed career criminal without it being charged in the
indictment.” After considering the PSI, the advisory guidelines, and the factors set
forth at 18 U.S.C. § 3553(a), the court found that a sentence at the bottom of the
advisory guideline range was appropriate, and, therefore, sentenced Rivera to 188
months’ imprisonment. However, the court granted Rivera’s request for credit as
to time served, and, pursuant to U.S.S.G. § 5G1.3(b), adjusted the sentence for the
13 months Rivera had already served for conduct relevant to the instant offense.
Thus, the court’s ultimate sentence was a net of 175 months’ imprisonment on each
count to run concurrently.
On appeal, Rivera argues that, in light of Apprendi v. New Jersey, 530 U.S.
466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Blakely v. Washington, 542 U.S.
296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543
U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 421 (2005), the district court violated his
Sixth Amendment right to a jury and Fifth Amendment right to an indictment when
it enhanced his sentence above the statutory maximum for a § 922(g)(1) offense on
the basis of prior convictions which were not charged, admitted, or found in a jury
verdict. Rivera further argues that, while the fact of a prior conviction is excepted
from the rule in Apprendi, a majority of the Supreme Court now disagrees with the
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logic of that exception. Moreover, Rivera argues that Shepard prevents judges
from finding facts “about” a prior conviction, which, he argues, means that the
court in this case could not constitutionally find that he had three prior convictions
“for a violent felony or serious drug offense or both” because these are facts
“about” a prior conviction. Rivera argues that Almendarez-Torres is now a
gravely wounded precedent, and, therefore, it should not control this issue. Next,
Rivera argues that, because the 180-month mandatory minimum of § 924(e)
exceeds the 10-year maximum otherwise applicable under § 924(a)(2), it violates
Apprendi and is not controlled by Harris, supra. Rivera further argues that Booker
has cast doubt on the validity of mandatory minimum sentences based on judicial
findings of prior convictions. While Rivera notes that this Court has upheld
mandatory minimum sentences under the Armed Career Criminal Act, he
distinguishes his case because here, the prior convictions were not alleged in the
indictment. Thus, he requests that he be sentenced as a felon in possession of
firearms and ammunition under § 922(g) without the armed career criminal
enhancement.
Where a defendant makes a constitutional challenge to his sentencing
enhancements,we conduct a de novo review and will also review for harmless
error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). We have held that
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there are two possible Booker errors, the first being the constitutional error of
extra-verdict sentence enhancements, and the second being the statutory error of
applying the guidelines in a mandatory fashion. United States v. Mathenia, 409
F.3d 1289, 1291 (11th Cir. 2005). Only the constitutional error is at issue here,
and, therefore, to the extent that there was any error, the burden is on the
government to show, beyond a reasonable doubt, that the error did not contribute to
the defendant’s sentence. Id.In Apprendi, the Supreme Court held that, “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63. In Booker, the Supreme
Court, evaluating the constitutionality of the Federal Sentencing Guidelines, held
that the mandatory nature of the Federal Guidelines rendered them incompatible
with the Sixth Amendment’s guarantee of a right to a jury trial. Booker, 543 U.S.
at 232-35,125 S.Ct. at 749-51. In so doing, the Court affirmed its holding in
Apprendi: “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.” Booker, 543 U.S at 244, 125 S.Ct. at 756.
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Post-Apprendi, we relied on Almendarez-Torres, to hold that a defendant’s
Fifth and Sixth Amendment rights did not include having the three predicate
felonies to trigger the statutory, mandatory minimum 15-year sentence under
ACCA charged in an indictment or proven to a jury. United States v. Thomas, 242
F.3d 1028, 1034-35 (11th Cir. 2001). Post-Booker, we have held that nothing in
Booker disturbed the Supreme Court’s holdings in Almendarez-Torres or
Apprendi, and that a district court, therefore, does not err by relying on prior
convictions to enhance a defendant’s sentence. See United States v. Gibson, 434
F.3d 1234, 1246-47 (11th Cir. 2005); United States v. Orduno-Mireles, 405 F.3d
960, 962-63 (11th Cir.), cert. denied, 126 S.Ct. 223 (2005); see also United States
v. Gallegos-Aguero, 409 F.3d 1274, 1276-77 (11th Cir. 2005); United States v.
Camacho-Ibarquen, 410 F.3d 1307, 1315-16 (11th Cir.), cert. denied, 126 S.Ct.
457 (2005). While Rivera hints that the Supreme Court’s recent decision in
Shepard casts doubt on the continuing validity of Almendarez-Torres as precedent,
this Court has held that until the Supreme Court explicitly overrules it,
Almendarez-Torres will continue to be followed. Gibson, 434 F.3d at 1247
(“Though wounded, Almendarez-Torres still marches on and we are ordered to
follow.”); Camacho-Ibarquen, 410 F.3d at 1316 n.3 (noting that, while the
Supreme Court’s decision in Shepard might cast doubt on the future of
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Almendarez-Torres, it remains precedent). Recently, we held that the government
did not have to allege prior convictions in an indictment or prove those prior
convictions beyond a reasonable doubt to a jury in order to support a § 924(e) 15-
year mandatory minimum sentence, and that the determination of whether the prior
convictions qualified was a question for the district court, not the jury. United
States v. Greer, 440 F.3d 1267, 1273-75 (11th Cir. 2006). In any event, the factual
findings made by the district court could not have triggered any constitutional error
because the district court was not bound by the guidelines, only by the statutory
minimum. See United States v. Chau, 426 F.3d 1318, 1323 (11th Cir. 2005).
Moreover, Rivera never objected to either the fact of his prior convictions or
to their characterization as violent felonies, and, therefore, those convictions are
deemed admitted. United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005)
(holding that, where the defendant did not challenge the relevant facts in the PSI,
those facts were deemed admitted, and no constitutional error occurred under
Booker). Rivera previously was convicted of three armed robberies in Florida, and
we have held that, under Florida law, robbery qualifies as a violent felony under 18
U.S.C. § 924(e)(2)(B)(ii). (PSI ¶ 22); United States v. Wilkerson, 286 F.3d 1324,
1325 (11th Cir. 2002). Thus, even if prior convictions were not excluded from the
Booker rule, we conclude that the district court did not commit any error by relying
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on the facts in the PSI to support the armed career criminal enhancement.
Furthermore, to the extent Rivera is arguing that Shepard applies, we
conclude that there was no error. In Shepard, the Supreme Court addressed only
the manner in which district courts find that a prior conviction qualifies as a violent
felony under the ACCA, holding that a district court’s inquiry to determine
whether a plea of guilty to a non-generic statute necessarily admitted elements of
the generic offense is limited “to the terms of the charging document, the terms of
a plea agreement or transcript of colloquy between judge and defendant in which
the factual basis for the plea was confirmed by the defendant, or to some
comparable judicial record of this information.” Shepard, 543 U.S. at 16-18, 26,
125 S.Ct. at 1257-58, 1263.
Here, Rivera has not argued that the district court relied on an improper
document as proof of the prior convictions, nor did he challenge the
characterization of his prior convictions as “violent felonies.” Therefore, nothing
in Shepard applies, and, in any event, we have held that a district court is permitted
to consider the nature of a prior conviction. Spears, 443 F.3d at 1361, quoting
Greer, 440 F.3d at 1275 (“the district court’s analysis of prior convictions includes
considering the ‘nature of prior convictions, without submitting those issues to the
jury.’”).
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Furthermore, to the extent Rivera is challenging the use of a mandatory
minimum sentence in light of Booker, nothing in Booker eliminated or declared
unconstitutional mandatory minimum sentences as provided for by Congress.
Post-Apprendi, the Supreme Court upheld the constitutionality of mandatory
minimum sentences. Harris, 536 U.S. at 568-69, 122 S.Ct. at 2420 (holding that 18
U.S.C. § 924(c)(1)(A)(ii)’s seven-year minimum sentence for brandishing a
firearm is constitutional). The Supreme Court in Booker made no mention of
Harris, nor has it overruled it since.
Accordingly, we are obliged to continue following Harris, and, for that
matter, Almendarez-Torres as precedent. As we have stated:
It is not given to us to overrule the decisions of the Supreme Court.
We have stated repeatedly, and with respect to the very issue
presented in this appeal, that ‘we are not at liberty to disregard
binding case law that is so closely on point and has been only
weakened, rather than directly overruled, by the Supreme Court.’
This is so even if we are convinced that the Supreme Court will
overturn its previous decision the next time it addresses the issue.
United States v. Gibson, 434 F.3d 1234, 1246-47 (11th Cir. 2006) (holding that,
while wounded, the Supreme Court’s decision in Almendarez-Torres remains
binding precedent) (citations omitted). Thus, unless and until the Supreme Court
holds that mandatory minimum sentences violate the Constitution, Rivera’s
argument lacks merit. See also United States v. Shelton, 400 F.3d 1325, 1333 n.10
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(11th Cir. 2005) (“[w]e emphasize that the district court was, and still is, bound by
the statutory minimums.”).
Lastly, to the extent that Rivera argues that the prior convictions were
required to be alleged in the indictment, neither Apprendi, Blakely, nor Booker
implicated the Fifth Amendment, and, in any event, prior convictions were
explicitly excluded from the rule that extra-verdict findings are unconstitutional if
they are binding and mandatory. Booker, 543 U.S at 244, 125 S.Ct. at 756.
Moreover, we recently rejected the notion that a defendant has a Fifth Amendment
right to have prior convictions that trigger a Guidelines enhancement found by a
grand jury and charged in his indictment because the problem with extra-verdict
enhancements is their use in a mandatory guidelines system, which is no longer an
issue in this case because the district court was not bound by the guidelines. United
States v. Thomas, 446 F.3d 1348, 1355 (11th Cir. 2006); cf. Thomas, 242 F.3d at
1034-35 (rejecting the argument that three prior convictions for purpose of
imposing 15-year statutory minimum had to be charged in an indictment and
reflected in the jury’s verdict); see also Gibson, 434 F.3d at 1249 (“Fifth and Sixth
Amendment concerns expressed in Apprendi, Blakely and Booker are not
implicated when a defendant’s sentence is enhanced based on his prior convictions.
. . . As far as his prior convictions are concerned, [the defendant] had no Fifth or
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Sixth Amendment rights to waive.”).
Based on the foregoing, we conclude that the district court committed no
constitutional error by sentencing Rivera as an armed career criminal. We,
therefore, affirm.
AFFIRMED.
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