United States v. Madrid-Beltran

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
September 5, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
__________________________ Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 07-4017
v. (D.Ct. No. 1:05-CR-128-TC)
(D. Utah)
M IG U EL A N G EL M A D RID -
B ELTRAN ,
Defendant-Appellant.
____________________________
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Appellant M iguel Angel M adrid-Beltran pled guilty to one count of
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
illegally reentering the United States in violation of 8 U.S.C. § 1326. The district
court sentenced M r. M adrid-Beltran to fifty-seven months imprisonment. He now
appeals his sentence, claiming the district court erred in sentencing him to a term
of imprisonment exceeding the two-year maximum penalty for illegal reentry
following deportation under 8 U.S.C. § 1326(a) by enhancing his sentence sixteen
levels for a prior felony conviction. In making his argument he suggests any facts
raising the maximum penalty must be alleged in the indictment and proved at
trial. W e exercise jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291,
and affirm his sentence.
I. Background
On October 12, 2005, an indictment issued against M r. M adrid-Beltran on
one count of illegal reentry into the United States in violation of 8 U.S.C. § 1326.
The same day, the government filed a notice of sentencing enhancement, advising
M r. M adrid-Beltran his sentence would be enhanced based on a prior conviction
for an aggravated felony and thereby would result in a sentence of imprisonment
of not more than twenty years under 8 U.S.C. § 1326(b). The notice listed both a
1999 conviction for possession of methamphetamine and a 2000 conviction for a
threat to commit a crime, for which he received a twenty-four-month sentence to
run concurrently with his twenty-four-month sentence following revocation of his
term of probation in the methamphetamine possession case. M r. M adrid-Beltran
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entered a written plea agreement, pleading guilty to the one-count indictment.
He also filed a statement in advance of the plea, in w hich he indicated his
attorney had explained, and he understood, not only the nature of the charges
against him and his right to a trial, but the consequences associated with pleading
guilty. He also acknowledged and certified he was advised of and understood the
maximum term of imprisonment was twenty years. At his plea hearing M r.
M adrid-Beltran made the same acknowledgments and pled guilty to the charge
against him.
After M r. M adrid-Beltran pled guilty, the probation officer prepared a
presentence report calculating his sentence under the applicable United States
Sentencing Guidelines (“Guidelines” or “U.S.S.G.”). The probation officer set
M r. M adrid-Beltran’s base level at eight under U.S.S.G. § 2L1.2(a) for unlaw fully
reentering the United States. The probation officer then increased the base level
by sixteen levels under § 2L1.2(b)(1)(A)(ii) based on M r. M adrid-Beltran’s prior
aggravated felony conviction for “M aking Terroristic Threats” against another,
which caused the victim to fear for her physical safety, thereby constituting a
“crime of violence” for the purpose of applying the enhancement. The probation
officer also recommended a three-level downward adjustment for acceptance of
responsibility. M r. M adrid-Beltran’s total offense level of twenty-one, together
with his criminal history category of IV, resulted in a Guidelines sentencing range
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of fifty-seven to seventy-one months imprisonment. The presentence report also
noted the maximum term of imprisonment was twenty years under 8 U.S.C.
§ 1326(b)(2).
M r. M adrid-Beltran filed only one objection to the presentence report,
contesting the maximum punishment for his offense w as twenty years under 8
U.S.C. § 1326(b) and claiming his offense of illegal reentry only warranted a
maximum punishment of two years under 8 U.S.C. § 1326(a). In making his
objection, M r. M adrid-Beltran noted the indictment did not charge him with the
prior conviction and he did not admit to the existence of that conviction as an
element of his instant crime when he pled guilty. W hile he acknowledged
Supreme Court and Tenth Circuit precedent resolved the issue against his
position, M r. M adrid-Beltran indicated he raised the issue to preserve it for future
appeal.
At the M ay 30, 2006 sentencing hearing M r. M adrid-Beltran raised the
same objection, which the district court rejected. After reviewing letters and
other materials on M r. M adrid-Beltran’s behalf; considering the presentence
report, the factors set forth in 18 U.S.C. § 3553(a), and the Guidelines range; and
hearing M r. M adrid-Beltran’s statement to the court, the district court determined
a reasonable sentence was at the low end of the Guidelines sentencing range at
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fifty-seven months imprisonment, with credit for time served starting on October
4, 2005.
M r. M adrid-Beltran now appeals his sentence on essentially the same
grounds as raised before the district court, claiming it erred in sentencing him to a
term of imprisonment exceeding the two-year maximum penalty by enhancing his
sentence sixteen levels for his prior felony conviction. In making his argument,
he again suggests any facts which raise his sentence beyond the two-year
maximum penalty are an element of the offense which must be alleged in the
indictment and proved at trial. He again concedes prior Supreme Court and Tenth
Circuit precedent foreclose his claim, but continues to preserve his argument for
future appeal. Other than this claim, M r. M adrid-Beltran does not suggest his
sentence is unreasonable under the sentencing factors in 18 U.S.C. § 3553(a).
II. Discussion
W e review the legality of a sentence de novo. See United States v. Prows,
448 F.3d 1223, 1226 (10th Cir. 2006). W e begin by acknowledging 8 U.S.C.
§ 1326(a) proscribes a maximum sentence of two years for the offense of illegal
reentry. However, § 1326(b)(2) sets a maximum penalty of twenty years if, as
here, the defendant possesses a prior aggravated felony conviction. Similarly,
§ 2L1.2(b)(1)(A)(ii) provides a sixteen-level sentencing enhancement if the
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defendant was deported after committing a crime of violence. 1
In Almendarez-Torres v. United States, the Supreme Court held the
existence of a prior conviction is merely a sentencing factor and not a separate
element of the offense which must be pled in an indictment charging a violation
of 8 U.S.C. § 1326. See 523 U.S. 224, 228-35 (1998). As a result, for the
twenty-year maximum in § 1326(b) to apply, the Supreme Court and this court
have determined the government is not required to allege in the indictment the
fact or existence of a prior aggravated felony conviction. Id. at 226-27; United
States v. M artinez-Villalva, 232 F.3d 1329, 1332 (10th Cir. 2000). W e have also
determined the holding in Almendarez-Torres continues to stand following the
Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005). See
United States v. M oore, 401 F.3d 1220, 1223-24 (10th Cir. 2005). Until the
Supreme Court overrules Almendarez-Torres, this court is bound by such
precedent. See M oore, 401 F.3d at 1224. Thus, in the instant case, we hold prior
precedent fully forecloses M r. M adrid-Beltran’s argument on appeal. 2
1
A “crime of violence,” for the purposes of § 2L1.2(b)(1)(A )(ii), is
defined as “any offense under federal, state, or local law that has as an element
the use, attempted use, or threatened use of physical force against the person of
another.” See U.S.S.G. § 2L1.2, cmt. n.1(B)(iii). In this case, M r. M adrid-
Beltran’s crime of making terroristic threats, causing another to fear for her
physical safety, was considered a crime of violence.
2
In addition, we note in this case the government filed, on the same day as
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Finally, M r. M adrid-Beltran raises no additional argument regarding the
reasonableness of his fifty-seven-month sentence and nothing in the record
persuades us otherw ise. Having reviewed for reasonableness the sentence’s
length, as guided by the factors in 18 U.S.C. § 3553(a), we find no nonfrivolous
basis for challenging the sentence imposed. See United States v. Kristl, 437 F.3d
1050, 1053 (10th Cir. 2006) (per curiam). The district court in this case
explicitly considered the factors in § 3553(a), and a presumption of
reasonableness attaches to a sentence, like here, which is within the correctly-
calculated Guidelines range, which M r. M adrid-Beltran has not rebutted. See id.
at 1053-55.
III. Conclusion
For these reasons, we A FFIRM M r. M adrid-Beltran’s sentence.
Entered by the C ourt:
W ADE BRO RBY
United States Circuit Judge
2
(...continued)
the indictment, a notice of sentencing enhancement advising M r. M adrid-Beltran
it intended to enhance his sentence with his prior conviction and that M r. M adrid-
Beltran acknowledged and certified he was advised and understood the maximum
term of imprisonment was twenty years when he entered his statement in advance
of his guilty plea.
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