United States v. Hugh Anthony Gordon , 242 F. App'x 685 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 2, 2007
No. 07-10269 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00184-CR-T-24-MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HUGH ANTHONY GORDON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 2, 2007)
Before ANDERSON, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Hugh Anthony Gordon pleaded guilty to entering the United States after
being deported, in violation of 8 U.S.C. § 1326(a). A violation of § 1326(a)
normally carries a maximum sentence of two years imprisonment, but because
Gordon had committed an aggravated felony prior to his deportation, the maximum
sentence was increased to twenty years imprisonment. See id. § 1326(b)(2).
The PSR calculated Gordon’s advisory guidelines range at 57 to 71 months
imprisonment. The district court, after considering the 18 U.S.C. § 3553(a) factors,
imposed a 57-month sentence. Gordon now appeals his conviction and sentence.
He contends that his conviction under § 1326 should be overturned because
it suffers from two constitutional infirmities: (1) the statutory maximum was
increased based on a sentencing factor that was not charged in the indictment or
found by a jury beyond a reasonable doubt, in violation of the Sixth Amendment;
and (2) his prior conviction was used to enhance his sentence, in violation of the
Double Jeopardy Clause of the Fifth Amendment. Because Gordon did not raise
either contention before the district court, we review them for plain error. United
States v. Underwood, 446 F.3d 1340, 1343 (11th Cir.), cert. denied, 127 S. Ct. 225(2006). We find no error, plain or otherwise.
Gordon’s Sixth Amendment argument is foreclosed by the Supreme Court’s
decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219(1998). There, the Court held that the government need not allege in its indictment
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or prove beyond a reasonable doubt that a defendant had prior convictions in order
for a district court to use those convictions to enhance his sentence under §
1326(b)(2). Id. at 235–39, 118 S. Ct. at 1226–29. Almendarez-Torres is still good
law until the Supreme Court tells us otherwise. See United States v. Wade, 458
F.3d 1273, 1278 (11th Cir.), cert. denied, 127 S. Ct. 2096 (2006).
Gordon’s double jeopardy argument is also foreclosed by Supreme Court
precedent. In Monge v. California, 524 U.S. 721, 118 S. Ct. 2246 (1998), the
Court held that “[a]n enhanced sentence imposed on a persistent offender . . . is not
to be viewed as either a new jeopardy or additional penalty for the earlier crimes
but as a stiffened penalty for the latest crime, which is considered to be an
aggravated offense because a repetitive one.” Id. at 728, 118 S. Ct. at 2250
(quotation omitted).
As to his sentence, Gordon contends that we should reverse it as
unreasonable. Gordon argues that his 57-month sentence is unreasonable because
(1) his offense was nonviolent, (2) he re-entered the United States only after he
abandoned his drug problem that was the cause of his original deportation, (3) he
cares for his three children, and (4) if he had pleaded guilty a few weeks later, he
would have qualified for the “fast-track program” and received a guidelines range
of between 41 and 51 months imprisonment.
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We expect that a sentence within the advisory guidelines range will be
reasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). Gordon
bears the burden of demonstrating that his sentence is unreasonable based on the
factors in 18 U.S.C. § 3553(a) and the record evidence. Id. He has not done that
here.
We have held that in crafting a reasonable sentence the district court need
not consider the disparity in prison time between a defendant who qualifies for
fast-track consideration and one, like Gordon, who doesn’t. See United States v.
Castro, 455 F.3d 1249, 1252–53 (11th Cir. 2006). As to the other mitigating
factors relied on by Gordon, they do not overcome our expectation that the 57-
month sentence is reasonable in light of Gordon’s multiple convictions for drug
dealing while he was living in the United States illegally; his knowing return to the
United States in violation of the deportation order; and his continued lawless
conduct (selling counterfeit trademarks) while again living in this country illegally.
We have no problem concluding that a sentence at the low end of the advisory
guidelines range and well below the statutory maximum of twenty years is
reasonable under the facts of this case. See United States v. Ortiz-Delgado, 451
F.3d 752, 758–59 (11th Cir. 2006) (concluding that 60-month sentence for illegally
re-entering the county was reasonable where the defendant had engaged in other
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unlawful conduct and the sentence was at the low-end of the advisory guidelines
range); United States v. Martinez, 434 F.3d 1318, 1322 (11th Cir.) (concluding that
87-month sentence was reasonable for violating § 1326(b)(2) because, among other
things, the sentence was “almost one-third the length of the twenty-year statutory
maximum sentence”), cert. denied, 126 S. Ct. 2946 (2006).
AFFIRMED.
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