United States v. Juan Gutierrez-Mira , 200 F. App'x 943 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCT 17, 2006
No. 06-13009
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 06-80009-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN GUTIERREZ-MIRA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 17, 2006)
Before MARCUS, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Juan Gutierrez-Mira pleaded guilty to illegal re-entry after deportation in
violation of 8 U.S.C. § 1326. At the change-of-plea hearing, the Government
alleged that Gutierrez-Mira had been found to be in the United States unlawfully
after deportation and that he had previously been convicted of forcible rape in
California. Gutierrez-Mira admitted the accuracy of the proffer. When defense
counsel argued that the prior conviction was not an element of the charged
offense, the district court reminded counsel that Gutierrez-Mira had admitted to
the prior conviction and added that if the defendant “want[ed] to debate those
issues” he should reconsider the plea as it was likely that the prior conviction
would impact sentencing. Counsel indicated that she was only seeking to preserve
a legal objection. The court then accepted the plea and found Gutierrez-Mira
guilty.
The probation officer prepared a presentence investigation report (PSI),
assigning a base level of 8 under U.S.S.G. § 2L1.2 with a 16-level enhancement
for the prior conviction under § 2L1.2(b)(1)(A). The report also included a 3-level
reduction for acceptance of responsibility, giving an adjusted offense level of 21.
The report categorized Gutierrez-Mira’s criminal history as Category II given the
prior conviction for forcible rape. The resulting guideline range was 41 to 51
months imprisonment.
Gutierrez-Mira objected to the PSI’s 16-level enhancement again, arguing
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that the indictment did not refer to the prior conviction and thus, citing United
States v. Booker, 543 U.S. 220 (2005), the prior conviction cannot be taken into
account for sentencing. The district court overruled the objection and sentenced
Gutierrez-Mira to a term of 46 months.
Gutierrez-Mira appeals his sentence, claiming that the 16-level
enhancement is unconstitutional under the Sixth Amendment because it is based
on his prior conviction that was neither charged in the indictment nor proved to a
jury beyond a reasonable doubt. He also argues that the district court violated the
holding in Shepard v. United States, 544 U.S. 13 (2005) by considering facts
about his prior conviction (that the conviction was for an aggravated felony) rather
than the fact of his prior conviction.
We review constitutional challenges to sentencing de novo, but will reverse
only if the error was harmful. United States v. Paz, 405 F.3d 946, 948 (11th Cir.
2005).
There is no merit to Gutierrez-Mira’s arguments. First, the Supreme Court
specifically has held that a prior conviction is a sentencing factor that need not be
charged in the indictment or proved to a jury. Almendarez-Torres v. United
States, 523 U.S. 224, 228 (1998); See Booker, 543 U.S. at 245 (2005) (affirming
that a prior conviction is a sentencing factor). This court has consistently held
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that Almendarez-Torres remains good law and is bound by it until it is explicitly
overruled by the Supreme Court. See United States v. Dowd, 451 F.3d 1244, 1253
(11th Cir. 2006), petition for cert. filed (Aug. 24, 2006) (No. 06-6164); United
States v. Gibson, 434 F.3d 1234, 1246 (11th Cir. 2006); United States v. Martinez,
434 F.3d 1318, 1323 (11th Cir. 2006).
Second, contrary to Gutierrez-Mira’s argument, the district court did not
violate Shepard by looking beyond the facts of the conviction to determine
whether the enhancement applied. Rather, the district court merely referred to the
commentary in U.S.S.G. § 2L1.2, that categorizes rape as a crime of violence.
U.S.S.G. § 2L1.2, cmt. (n.1(B)(iii)). See United States v. Houston, 456 F.3d 1328,
1340 (11th Cir. 2006) (holding that the court properly considered the defendant’s
prior convictions and properly categorized the convictions as “crimes of violence”
under U.S.S.G. § 4B1.1). Unlike the facts of Shepard where the district court had
been asked to review police documents concerning the nature of the underlying
offense, here the district court only took into account the prior conviction and
applied the correct enhancement under the Guidelines.
Moreover, Gutierrez-Mira’s acceptance of the factual proffer when he plead
guilty constitutes an admission of the prior conviction sufficient to apply the
enhancement. United States v. Williams, 444 F.3d 1286, 1308 (11th Cir. 2006)
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(holding that the defendant’s admission of the factual basis for his sentence
eliminated any Booker-error).
For the above reasons, we AFFIRM the district court’s sentence.
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