United States v. Rene Suarez

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 22, 2007
No. 05-16797 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-20298-CR-UUB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RENE SUAREZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 22, 2007)
Before ANDERSON, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Rene Suarez pleaded guilty to conspiracy to possess with intent to distribute
cocaine, 21 U.S.C. § 846. Suarez now appeals his 262-month sentence. He was
sentenced as a career offender because he has prior Florida state convictions for
drug trafficking, battery on a law enforcement officer, and aggravated child abuse.
Suarez first argues that the district court erred because the government failed
to prove to a jury, beyond a reasonable doubt, that he was convicted of battery on a
law enforcement officer and aggravated child abuse, or that those convictions were
crimes of violence. We review de novo a district court’s decision to classify a
defendant as a career offender under U.S.S.G. § 4B1.1. United States v. Gibson,
434 F.3d 1234, 1243 (11th Cir.), cert. denied, 126 S.Ct. 2911 (2006). We also
review de novo the determination that a prior conviction qualifies as a “crime of
violence.” United States v. Ortiz-Delgado, 451 F.3d 752, 754 (11th Cir. 2006).
A defendant is classified as a career offender if, inter alia, he has at least two
prior felony convictions for crimes of violence or controlled substance offenses.
U.S.S.G. § 4B1.1(a). A crime of violence is any offense punishable by a term of
imprisonment exceeding one year that “(1) has as an element the use, attempted
use, or threatened use of physical force against the person of another, or (2) is
burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to
another.” U.S.S.G. § 4B1.2(a).
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Suarez challenges the district court’s authority to determine that he was
convicted of battery on a law enforcement officer and aggravated child abuse, and
that those crimes were crimes of violence. Suarez’s argument is without merit.
We have repeatedly recognized that there still exists a prior conviction exception to
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000) and United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). See United States v. Greer, 440 F.3d
1267, 1273 (11th Cir. 2006) (collecting cases). Under Almendarez-Torres v.
United States, 523 U.S. 224, 118 S. Ct. 1219 (1998), which remains binding
precedent, “the government need not allege in its indictment and need not prove
beyond a reasonable doubt that a defendant had prior convictions for a district
court to use those convictions for purposes of enhancing a sentence.” United
States v. Camacho-Ibarquen, 410 F.3d 1307, 1315 (11th Cir. 2005). Nor must the
government prove to a jury beyond a reasonable doubt the nature of the prior
convictions. Greer, 440 F.3d at 1275. The judge is permitted to find facts about
both the existence and the nature of a defendant’s prior convictions. Id.
Suarez cites Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254 (2005).
That case is inapposite. Shepard was a statutory decision holding that in
determining the nature of a prior conviction, a trial judge may not look beyond the
statutory elements, charging documents, a plea agreement and colloquy, jury
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instructions, or any comparable judicial record. Id. at 26, 125 S. Ct. at 1263.
Shepard did not, however, undermine the Almendarez-Torres prior conviction
exception. In fact, “[t]here is implicit in the Shepard rule. . . a recognition that if
the nature of the prior conviction can be determined from those types of records,
under existing law the trial judge may make the determination. There would be no
point in restricting the sources that a judge may consider in reaching a finding if
judges were barred from making it.” Greer, 440 F.3d at 1275.
The district court was thus permitted to find facts about the existence and
nature of Suarez’s prior convictions for the purpose of classifying him as a career
offender. Here the district court had to look no further than the fact of conviction
to determine that Suarez was a career offender. Both battery on a law enforcement
officer, in violation of Fla. Stat. §§ 784.03, 784.07, and aggravated child abuse, in
violation of Fla. Stat. § 827.03(2), are crimes of violence. United States v. Glover,
431 F.3d 744, 749 (11th Cir. 2005) (holding that battery on a law enforcement
officer was a crime of violence in Florida); see United States v. Wilson, 392 F.3d
1243, 1246 (11th Cir. 2004) (noting that the use of physical force is an element of
aggravated child abuse under Florida law). The district court therefore did not
violate the Shepard rule or otherwise err in determining that Suarez was a career
offender.
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Suarez also claims that the district court was not permitted to rely on the
aggravated child abuse conviction because the government did not provide 21
U.S.C. § 851(a)(1) notice. Section 851(a)(1) of Title 21 requires that the
government provide notice, prior to trial or plea, before a defendant “convicted of
an offense under [Title 21] shall be sentenced to increased punishment by reason of
one or more prior convictions.” Suarez has raised this argument for the first time
on appeal. We review sentencing issues raised for the first time on appeal for plain
error. United States v. Rodriguez, 398 F.3d 1291, 1297-98 (11th Cir.), cert.
denied, 125 S.Ct. 2935 (2005). This standard requires that there be error, that it be
plain, and that it affect substantial rights. Id. at 1298. If these conditions are met,
then we may exercise our discretion to notice the error if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.We have held that “the Government does not have to follow the notice
requirements of section 851 in order to use a defendant's prior convictions to
enhance his sentence under the Guidelines as a career offender.” Young v. United
States, 936 F.3d 533, 535-36 (11th Cir. 1991). The government was therefore not
required to provide pre-plea notice to Suarez before the district court could rely on
his aggravated child abuse conviction to sentence him as a career offender.
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Accordingly, we affirm Suarez’s sentence.1
AFFIRMED.
1
Suarez also asserts in passing that the information about his convictions was testimonial
hearsay the use of which is prohibited under Crawford v. Washington, 541 U.S. 36, 124 S. Ct.
1354 (2004). Suarez’s argument is without merit because Crawford does not extend to
sentencing proceedings. United States v. Cantellano, 430 F.3d 1142, 1146 (11th Cir. 2005).
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