United States v. Uriel Pineda

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-13937 September 1, 2005
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 03-80161-CR-JCP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
URIEL PINEDA,
a.k.a. Uriel Pineda-Torres,
a.k.a. Jose Robles,
a.k.a. Jose Salvatine,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 1, 2005)
Before ANDERSON, BIRCH and PRYOR, Circuit Judges.
PER CURIAM:
Uriel Pineda appeals his 57-month sentence of imprisonment for reentering
the United States illegally after having previously been removed. Pineda argues
that the district court committed both statutory and constitutional errors under
United States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005), because the district
court, under a mandatory Guidelines system, enhanced Pineda’s sentence based on
a finding that Pineda was sentenced previously to concurrent 25-month sentences
for trafficking cocaine before Pineda was removed from the United States.
Because Pineda preserved this objection in the district court, and the government
cannot establish that the error of sentencing Pineda under a mandatory regime was
harmless, we vacate his sentence and remand for resentencing.
After Pineda pleaded guilty to violating 18 U.S.C. section 1326(a) and
(b)(2), the district court enhanced Pineda’s sentence because Pineda had been
convicted previously of trafficking cocaine. U.S.S.G. § 2L1.2(b)(1)(A)(i). Pineda
had been sentenced to longer than 13 months’ imprisonment, the threshold for the
sentence enhancement of section 2L1.2(b)(1)(A)(i) of the Guidelines. Pineda
objected to the enhancement of his sentence because the district judge, not a jury,
found that Pineda had been sentenced to more than 13 months’ imprisonment for
his previous offense. The district court overruled Pineda’s objection and, because
Pineda was a category IV career criminal, sentenced Pineda to 57 months in prison
for his illegal reentry. That sentence was at the low end of the Guideline range.
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“Where there is a timely objection, we review the defendant’s Booker claim
in order to determine whether the error was harmless.” United States v. Mathenia,
409 F.3d 1289, 1291 (11th Cir. 2005). As this Court discussed in Mathenia,
“[t]here are two harmless error standards. One of them applies to Booker
constitutional errors, the other to Booker statutory errors.” Id. The first standard,
for constitutional error, requires the government to show “beyond a reasonable
doubt, that the error did not contribute to the defendant’s ultimate sentence.” Id. at
1291-92. The second standard, for statutory error, requires us to determine
whether the error either did not affect the sentence or only had a very slight effect.
Id. at 1292 (quoting United States v. Hornaday, 392 F.3d 1306, 1315-16 (11th Cir.
2004)). The standard of review for statutory error “is not easy for the government
to meet. It is as difficult for the government to meet that standard as it is for a
defendant to meet the third-prong prejudice standard for plain error review.” Id.Pineda’s constitutional argument fails. It was not an error for the district
court to enhance Pineda’s sentence based on his previous convictions and sentence.
As the Court explained in Booker, “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.” 543 U.S. at ___, 125 S. Ct. at 756
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(emphasis added). This Court has stated previously that “we find no merit in [the]
. . . argument that the Sixth Amendment requires that a jury, not a judge, must
determine whether” a previous conviction fits within a “category of offenses.”
United States v. Gallegos-Aguero, 409 F.3d 1274, 1277 (11th Cir. 2005). Judicial
factfinding regarding the length of the sentence imposed for a previous conviction
is a necessary component of the surviving exception to the ban on judicial
factfinding imposed by Booker .
Pineda’s argument regarding statutory error has merit. As stated earlier, the
standard of review for preserved statutory error “is not easy for the government to
meet.” Mathenia, 409 F.3d at 1292. The government has conceded its difficulty
here: the government admits that the record does not show that sentencing Pineda
under the Guidelines as mandatory had a minimal effect on Pineda’s ultimate
sentence. Because the government cannot establish that this statutory error was
harmless, we must vacate Pineda’s sentence and remand this case to the district
court.
VACATED and REMANDED.
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