United States v. Ismael Clemenete-Paloma

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 26, 2005
No. 04-15514 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00042-CR-T-17-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISMAEL CLEMENTE-PALOMA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 26, 2005)
Before BIRCH, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Ismael Clemente-Paloma, a Mexican citizen, appeals his 41-month sentence
for illegally re-entering the United States. See 8 U.S.C. §§ 1326(a) & (b)(1).
Although the district court did not err when it enhanced his sentence based on a
previous conviction for a crime of violence, the court erred under United States v.
Booker, 543 U.S. __, 125 S. Ct. 738 (2005), when it sentenced Clemente-Paloma
under a mandatory guidelines scheme. Because, as the government concedes, the
statutory error was not harmless, we vacate and remand for resentencing.
I. BACKGROUND
Clemente-Paloma was convicted under Florida law of unlawful sexual
activity with a minor, placed on five years probation, and removed from the United
States. Clemente-Paloma later re-entered the United States, was arrested for a
probation violation, and was then arrested and charged with illegal re-entry into the
United States. Clemente-Paloma pleaded guilty to illegal re-entry.
At the sentencing hearing, Clemente-Paloma objected to the
recommendation of the Presentence Investigation Report that his base offense level
be enhanced by 16 levels because his previous crime was a crime of violence. The
district court overruled the objection, concluded that the sexual activity with a
minor was a crime of violence, and applied the 16-level enhancement. Clemente-
Paloma also argued that the enhancement violated the Fifth and Sixth
Amendments. The district court sentenced Clemente-Paloma to 41 months of
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imprisonment, the low end of the guideline range, followed by3 years of
supervised release.
II. DISCUSSION
Clemente-Paloma makes two arguments on appeal. He first asserts that the
district court erred when it applied the 16-level enhancement under section 2L1.2
of the Sentencing Guidelines because he contends that his previous conviction was
not a crime of violence. Clemente-Paloma next argues that the district court erred
under Booker when it enhanced his sentence, under a mandatory guideline scheme,
based on facts that were not proved to a jury beyond a reasonable doubt. We
address each argument in turn.
A. Crime of Violence
We review de novo a determination by the district court that a previous
conviction qualifies as a crime of violence under section 2L1.2(b)(1)(A) of the
Sentencing Guidelines. United States v. Orduno-Mireles, 405 F.3d 960, 961 (11th
Cir. 2005). The guidelines state that, if a defendant was previously deported after a
conviction for a felony that is a crime of violence, his offense level is increased by
16 levels. U.S.S.G. § 2L1.2(b)(1)(A). Clemente-Paloma argues that the district
court erred because his conviction for unlawful sexual activity with a minor is not a
crime of violence.
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Our precedent clearly forecloses Clemente-Paloma’s argument. In Orduno-
Mireles, we concluded that a “felony conviction for unlawful sexual activity with
certain minors qualifies as a crime of violence within the Guideline definition,
either as sexual abuse of a minor or statutory rape.” Orduno-Mireles, 405 F.3d at
961. The district court did not err when it enhanced Clemente-Paloma’s sentence
based on his previous conviction for unlawful sexual activity with a minor. See id.
at 961-62.
B. Booker Error
Clemente-Paloma also argues that the district court erred under Booker
when it enhanced his sentence under a mandatory guidelines scheme based on facts
that were not proved to a jury beyond a reasonable doubt. We have explained that
there are two kinds of sentencing errors based on Booker: the first is called
constitutional error, because“the Sixth Amendment right to trial by jury is violated
where under a mandatory guidelines system a sentence is increased because of an
enhancement based on facts found by the judge that were neither admitted by the
defendant nor found by the jury,” United States v. Rodriguez, 398 F.3d 1291,
1297 (11th Cir. 2005) (citations omitted); and the second is called statutory error,
because “[a]s a result of Booker’s remedial holding, Booker error exists when the
district court misapplies the Guidelines by considering them as binding as opposed
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to advisory.” United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005).
Because Clemente-Paloma raised in the district court both constitutional and
statutory error under Booker, we review his objections for harmless error. United
States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005). Each kind of Booker
error requires a different standard of review to determine whether the error was
harmless. Booker constitutional error is harmless when the government can show,
beyond a reasonable doubt, that error did not contribute to the ultimate sentence.
Id. at 1292. Booker statutory error is subject to a less demanding test. Id. A
statutory error is harmless if, viewing the proceedings in their entirety, the error did
not affect the sentence or had only a “very slight effect.” Id. If the sentence was
not “substantially swayed” by the error, then the sentence should be affirmed in
spite of the error. Id.The district court did not commit constitutional error under Booker when it
enhanced Clemente-Paloma’s sentence based on his previous conviction for
unlawful sexual activity with a minor. In Almendarez-Torres v. United States, 523
U.S. 224 118 S. Ct. 1219 (1997), the Supreme Court concluded that recidivism is
not a separate element of an offense that the government is required to prove
beyond a reasonable doubt. 523 U.S. at 247, 118 S. Ct. at 1232-33. Booker
specifically excepted previous convictions from its holding. See Booker, 543 U.S.
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at __, 125 S. Ct. at 756. We have concluded that the Supreme Court left its
holding in Almendarez-Torres undisturbed, and Almendarez-Torres remains good
law and binding precedent until the Supreme Court decides otherwise. See
Orduno-Mireles, 405 F.3d at 962-63 (11th Cir. 2005); Shelton, 400 F.3d at 1329.
Although there was no constitutional error, the district court erred when it
sentenced Clemente-Paloma under a mandatory guidelines system. See Shelton,
400 F.3d at 1330-31. The government concedes that it cannot prove that the error
did not affect Clemente-Paloma’s sentence, and there is nothing in the record to
suggest that had the district court known the guidelines were advisory, the district
court would have imposed the same sentence. The statutory error, therefore, was
not harmless.
III. CONCLUSION
The district court did not err when it enhanced Clemente-Paloma’s sentence
based on a previous conviction for a crime of violence. The district court erred
when it sentenced Clemente-Paloma under a mandatory guidelines scheme.
Because the statutory error was not harmless, we vacate and remand for
resentencing.
VACATED AND REMANDED.
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