United States v. Antonio Amador Oritz , 229 F. App'x 858 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-14595 APRIL 30, 2007
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 06-80065-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO AMADOR ORTIZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 30, 2007)
Before TJOFLAT, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Antonio Amador Ortiz appeals his 70-month sentence, imposed after he pled
guilty to illegally reentering the country after being previously deported, in
violation of 8 U.S.C. §§ 1326(a), 1326(b)(2). On appeal, Ortiz argues that his Fifth
and Sixth Amendment rights were violated when the district court imposed
sentence based on his prior felony conviction for attempted lewd and lascivious
molestation of a child less than 12, where the facts underlying the felony were
neither alleged in the indictment nor admitted at the plea colloquy, contrary to
United States v. Booker, 543 U.S. 220 (2005).1 We affirm.
Because Ortiz asserted his Booker claim at sentencing, he raised a timely
constitutional objection and is entitled to preserved error review. See United States
v. Candelario, 240 F.3d 1300, 1306 (11th Cir. 2001). We review preserved
constitutional errors de novo, but “will reverse only for harmful error.” See United
States v. Sanchez, 269 F.3d 1250, 1272 (11th Cir. 2001) (en banc).
Section 1326(b)(2) of Title 8 of the United States Code provides for a
maximum sentence of 20 years’ imprisonment for illegal reentry if a defendant was
deported subsequent to being convicted of an aggravated felony. On the other
hand, a defendant who was not deported subsequent to being convicted of an
aggravated felony, and who does not satisfy any of the other requirements
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To the extent Ortiz suggests the district court’s imposition of sentence also violated
Shepard v. United States, 544 U.S. 13 (205), we are unpersuaded. In Shepard, the district court had
been asked to review police documents concerning the nature of the underlying offense. Here, by
contrast, the district court did not look beyond the fact of Ortiz’s prior conviction in enhancing his
sentence under § 2L1.2(b)(1)(A). Accordingly, Shepard was not implicated. See United States v.
Orduno-Mireles, 405 F.3d 960, 962 (11th Cir.) (distinguishing Shepard and noting that the defendant
did not contend and the record did not reveal that the district court had resolved disputed facts
relating to the prior conviction supporting enhancement for prior crime of violence under §
2L1.2(b)(1)(A)), cert. denied, 126 S. Ct. 223 (2005).
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justifying an enhanced penalty under § 1326(b), is subject to a maximum of two
years’ imprisonment, under 8 U.S.C. § 1326(a).
As Ortiz recognizes, the Supreme Court has held that the government need
not allege in the indictment nor prove beyond a reasonable doubt the fact that a
defendant had prior convictions in order for a district court to enhance a
defendant’s sentence based on those convictions. See Almendarez-Torres v.
United States, 523 U.S. 224, 247 (1998). Notably, Almendarez-Torres involved a
challenge to the exact penalty provision at issue in the instant case -- 8 U.S.C. §
1326(b)(2). More recently, in United States v. Booker, 543 U.S. 220 (2005), the
Court reiterated its holding in Almendarez-Torres: “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 244 (emphasis added).
We have observed that the Almendarez-Torres decision “was left
undisturbed by Apprendi, Blakely [v. Washington, 542 U.S. 296 (2004)], and
Booker.” United States v. Shelton, 400 F .3d 1325, 1329 (11th Cir. 2005). And
we have consistently rejected the argument that a district court errs by basing a
sentencing enhancement on a prior conviction that is neither proved beyond a
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reasonable doubt to a jury nor admitted by the defendant. See, e.g., United States
v. Greer, 440 F.3d 1267, 1273-76 (11th Cir. 2006) (collecting cases); United States
v. Camacho-Ibarquen, 410 F.3d 1307, 1315-16 (11th Cir.), cert. denied, 126 S. Ct.
457 (2005); United States v. Orduno-Mireles, 405 F.3d 960, 962-63 (11th Cir.),
cert. denied, 126 S. Ct. 223 (2005). We reject Ortiz’s invitation to revisit this issue
yet again. Pursuant to Almendarez-Torres, and our uniform line of cases applying
it, the district court did not err in sentencing Ortiz based on his prior conviction.
AFFIRMED.
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