United States v. Ramos-Duran , 184 F. App'x 696 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 12, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v.
M IGUEL RAM OS-DURAN, also
known as Jerry Garcia, also known as
Jose Luis Duran, also known as Jerry
Domingues, also known as Jose Luis
Ramos Duran, also known as M iguel No. 05-4210
Ramos D uran, also known as Luis (District of Utah)
M iguel M endoza, also know n as Jose (D.C. No. 2:05-CR -253-TS)
Luis Ramos, also known as Salvador
Velez, also known as M ario Ramos,
also know n as M iguel Ramos, also
know n as M iguel D. Ramos, also
know n as M iguel Duran Ramos, also
know n as M ario G odina, also known
as Sporty Velez, also known as
Salvador Salcido Jr. Velez,
Defendant-Appellant.
OR D ER AND JUDGM ENT *
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before M U RPH Y, SE YM OU R and M cCO NNELL, Circuit Judges.
After examining the briefs and appellate record, the panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is, therefore,
ordered submitted without oral argument.
Defendant-Appellant M iguel Ramos-Duran was charged with, and pleaded
guilty to, one count of illegal reentry following deportation, in violation of 8
U.S.C. § 1326. Ramos-Duran w as sentenced to fifty-seven months’
imprisonment, based in part on a sixteen-level enhancement for previous
deportation after a conviction for a crime of violence— unlawful sexual abuse of a
minor. See United States Sentencing Guidelines M anual § 2L1.2(b)(1)(A)(ii).
Ramos-D uran challenges the application of the sixteen-level enhancement in
calculating his sentence. W e assert jurisdiction pursuant to 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a), and affirm.
The statutory maximum for illegal reentry is tw o years’ imprisonment. 8
U.S.C. § 1326(a). Nevertheless, Ramos-Duran had previously been deported after
conviction for an aggravated felony. Thus, under § 1326(b)(2), he was subject to
a maximum penalty of twenty years’ imprisonment. Ramos-D uran’s indictment,
however, did not allege he had previously been convicted of an aggravated
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felony. 1 Ramos-Duran asserts that, pursuant to the Sixth Amendment, the
government was required to allege his prior conviction in the indictment because
the prior conviction was used to increase his sentence above the prescribed
statutory maximum. W e review constitutional challenges to a sentence de novo.
United States v. Angelos, 433 F.3d 738, 754 (10th Cir. 2006).
In Almendarez-Torres v. United States, the Supreme Court addressed
whether a violation of § 1326(b)(2) constitutes a separate crime that must be
charged in an indictment. 523 U .S. 224, 228–235 (1998). Noting that Congress
intended the existence of a prior conviction to be a sentencing factor, not an
element of the crime, the Court concluded the fact of a prior conviction need not
be charged in the indictment. Id. at 226, 235. The Court subsequently held, in
Apprendi v. New Jersey, that any fact which increases a sentence beyond the
statutory maximum must be charged in an indictment and proved to a jury beyond
a reasonable doubt. 530 U.S. 466, 490 (2000). The Court, however, carved out
an exception for prior convictions. Id.; see also United States v. Dorris, 236 F.3d
582, 587–88 (10th Cir. 2000) (concluding Apprendi did not overrule Almendarez-
Torres). In doing so, the Court explained a sentencing enhancement based on a
prior conviction does not implicate the same concerns as other enhancements
because prior convictions are “entered pursuant to proceedings with substantial
1
Ramos-Duran did admit to a prior conviction for unlawful sexual abuse of
a minor in his plea colloquy.
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procedural safeguards of their own.” Apprendi, 530 U.S. at 488. The exception
for prior convictions was reaffirmed in United States v. Booker. 543 U.S. 220,
244 (2005) (“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.”); see also United States v. M oore, 401 F.3d
1220, 1223 (10th Cir. 2005) (concluding Booker did not overrule Almendarez-
Torres). Thus, under current Supreme Court precedent the fact of a prior
conviction need not be charged in an indictment, submitted to a jury, or admitted
by the defendant to increase a defendant’s sentence beyond the statutory
maximum for the crime charged.
Ramos-Duran acknowledges Almendarez-Torres, but notes the Supreme
Court has questioned its continued validity. See Shepard v. United States, 544
U.S. 13, 27 (2005) (Thomas, J., concurring in part and concurring in the
judgment) (noting “Almendarez-Torres . . . has been eroded by this Court’s
subsequent Sixth Amendment jurisprudence, and a majority of the Court now
recognizes that Almendarez-Torres was w rongly decided”); Apprendi, 530 U.S. at
489 (observing “it is arguable that Almendarez-Torres was incorrectly decided”).
As this court recently observed, however, “[a]lthough the Court may overrule
Almendarez-Torres at some point in the future, it has not done so, we will not
presume to do so for the Court, and we are bound by existing precedent to hold
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that the Almendarez-Torres exception to the rule announced in Apprendi and
extended to the Guidelines in Booker remains good law.” M oore, 401 F.3d at
1224. Ramos-Duran nonetheless wishes to preserve this issue for appeal to the
Supreme Court, and he has done so.
Ramos-Duran also claims the district court lacked jurisdiction to impose a
sentence in excess of the two-year maximum authorized by 8 U.S.C. § 1236(a).
He argues the district court’s subject matter jurisdiction was limited by the crime
charged in the indictment. The indictment, however, charged Ramos-D uran with
violating 8 U.S.C. § 1236, not a particular subsection of the statute. M oreover, as
discussed above, the government was not required to allege Ramos-Duran’s prior
conviction in the indictment to permit the district court to sentence him beyond
the statutory maximum provided in § 1236(a). In any event, “the failure of an
indictment to allege an essential element of a crime does not deprive a district
court of subject matter jurisdiction.” United States v. Prentiss, 256 F.3d 971, 981
(10th Cir. 2001) (en banc).
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For the foregoing reasons, Ramos-Duran’s sentence is AFFIRM ED.
ENTERED FOR THE COURT
M ichael R. M urphy
Circuit Judge
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