United States v. Diego Henandez Gomez

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 5, 2007
No. 06-14736 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00029-CR-T-30-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DIEGO HERNANDEZ GOMEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 5, 2007)
Before DUBINA, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
Appellant Diego Hernandez Gomez (“Hernandez-Gomez”) appeals his 46-
month sentence for illegally reentering the United States after previously having
been convicted of an aggravated felony offense in violation of 8 U.S.C. §§ 1326(a),
(b)(2).
On appeal, Hernandez-Gomez first argues that § 1326 is unconstitutional
because it purports to create “sentencing factors,” which increase the statutory
maximum penalty for illegal reentry without meeting the charging and jury trial
requirements of the Fifth and Sixth Amendments. He concedes that Almendarez-
Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998) exempts prior
convictions from those requirements, but he argues that its viability has been
questioned and its holding should not be applied to his case because he did not
admit the characterization of his prior conviction. He maintains that the question
of whether a prior conviction is an aggravated felony is too far removed from the
significance of simply having a prior conviction, and thus, should not be subject to
Almendarez-Torres.
We review a defendant’s preserved constitutional challenge to his sentence
de novo. See United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).
Under 8 U.S.C. § 1326(a), an alien who has been deported and then reenters
the United States without permission is subject to a maximum sentence of two
years. 8 U.S.C. § 1326(a). However, the maximum sentence increases to 20 years
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if the alien was convicted of an “aggravated felony” before removal. 8 U.S.C. §
1326(b)(2).
In Almendarez-Torres, the Supreme Court specifically addressed whether
“[§ 1326(b)] defines a separate crime or simply authorizes an enhanced penalty,”
and concluded “that the subsection is a penalty provision, which simply authorizes
a court to increase the sentence for a recidivist,” and does not “define a separate
crime.” Almendarez-Torres, 523 U.S. at 226, 118 S. Ct. at 1222. It went on to
hold that “neither the statute nor the Constitution requires the Government to
charge the factor that it mentions, an earlier conviction, in the indictment.” Id. at
226-27, 118 S. Ct at 1222.
In Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), the
Supreme Court declined to revisit Almendarez-Torres and 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. The
Supreme Court later revisited the rule set forth in Apprendi, explicitly reaffirming
“[that a]ny 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
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beyond a reasonable doubt.” United States v. Booker, 543 U.S. 220, 244, 125 S.
Ct. 738 (2005).
In Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254 (2005), the
Supreme Court limited the scope of judicial fact finding for a sentencing
enhancement under the Armed Career Criminal Act, 18 U.S.C. § 924(e). The
Court held:
[the] enquiry under the ACCA to determine whether a plea of guilty to
burglary defined by a nongeneric 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, 544 U.S. at 26, 125 S. Ct. at 1263.
We have held that the Supreme Court’s decision in Almendarez-Torres “was
left undisturbed by Apprendi, Blakely, and Booker.” United States v. Shelton, 400
F.3d 1325, 1329 (11th Cir. 2005). We also have noted that, while recent decisions,
including Shepard, may arguably cast doubt on the future prospects of
Almendarez-Torres, the Supreme Court has not explicitly overruled
Almendarez-Torres, and, as a result, it is still good law. See United States
v. Camacho-Ibarquen, 410 F.3d 1307, 1315-16, 1316 n.3 (11th Cir.) (upholding an
enhancement under § 1326(b)(2)), cert. denied, 126 S. Ct. 457 (2005).
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Hernandez-Gomez argues that 8 U.S.C. § 1326 is unconstitutional because it
allows for a sentence enhancement based on facts not alleged in the indictment or
admitted regarding the aggravated nature of a previous felony. The prior
conviction of an aggravated felony as a sentencing factor for a § 1326 offense is
exactly what the defendant complained of in Almendarez-Torres, which
specifically upheld that the government does not have to allege the defendant’s
prior convictions in the indictment in order to increase the penalty. Further, we
have reiterated that we must follow Almendarez-Torres until the Supreme Court
expressly overrules it. Accordingly, we conclude that Hernandez-Gomez’s
argument that 8 U.S.C. § 1326 is unconstitutional is without merit.
Next, Hernandez-Gomez argues that his conviction under 8 U.S.C. § 1326violates double jeopardy principles because it raises his guideline range and
maximum statutory sentence based upon a prior conviction, resulting in additional
punishment for the previous offense. 8 U.S.C. § 1326(b)(2) raises the maximum
possible sentence beyond what the statutory maximum would be without the
finding of the prior conviction.
“[W]e review [] de novo, as a pure question of law, any possible violation of
the Double Jeopardy Clause.” United States v. Thurston, 362 F.3d 1319, 1322
(11th Cir. 2004).
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The Double Jeopardy Clause provides that no person shall “be subject for
the same offence to be twice put in jeopardy of life or limb.” U.S. Const., amend.
V. The Double Jeopardy Clause protects against “the imposition of multiple
punishments for the same offense.” United States v. Dowd, 451 F.3d 1244, 1251
(11th Cir.), cert. denied, 127 S. Ct. 335 (2006). Enhancement statutes “do not
change the penalty imposed for the earlier conviction,” but “penaliz[e] only the last
offense committed by the defendant.” Nichols v. United States, 511 U.S. 738, 747,
114 S. Ct. 1921, 1927 (1994). The Supreme Court has reaffirmed that sentence
enhancements are not construed as additional punishment for a previous offense,
but only increase a sentence because of the manner of the crime, and the
enhancements are neither a new jeopardy nor an additional penalty for the earlier
crimes, but a harsher punishment for the newest crime. See Monge v. California,
524 U.S. 721, 728, 118 S. Ct. 2246, 2250 (1998).
As Hernandez-Gomez’s sentence was enhanced based on a prior conviction,
we conclude that it did not violate the Double Jeopardy Clause because it was
simply a harsher punishment for the instant conviction, not additional punishment
for a prior conviction. His double jeopardy argument also fails because
Almendarez-Torres specifically held that § 1326(b) is a penalty provision,
authorizing a court to increase the sentence for a recidivist and failing to define a
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separate crime. Therefore, Hernandez-Gomez’s conviction did not violate the
Double Jeopardy Clause. Accordingly, we affirm Hernandez-Gomez’s sentence.
AFFIRMED.
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