United States v. Joseph Leroy Bethel , 288 F. App'x 667 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-10795 AUGUST 6, 2008
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 07-80162-CR-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH LEROY BETHEL,
a.k.a. Jason Williams,
a.k.a. Johnny Lee Cross,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 6, 2008)
Before BIRCH, DUBINA and MARCUS, Circuit Judges.
PER CURIAM:
Joseph Leroy Bethel appeals from his 70-month sentence for illegal reentry
of a previously removed alien, in violation of 8 U.S.C. § 1326(a) and (b)(2). On
appeal, Bethel argues: (1) that his sentence was substantively unreasonable
because his offense was nonviolent and he had been making strides at becoming a
productive member of society; and (2) that his sentence was unconstitutionally
enhanced because the enhancement was based upon the fact of a prior conviction
that was not alleged in the indictment. After thorough review, we affirm.
We review the ultimate sentence imposed by a district court for
“reasonableness,” which “merely asks whether the trial court abused its
discretion.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008) (quoting
Rita v. United States, 127 S. Ct. 2456, 2465 (2007)). We review a defendant’s
preserved constitutional challenge to his sentence de novo. United States v. Paz,
405 F.3d 946, 948 (11th Cir. 2005).
We are unpersuaded by Bethel’s argument that his sentence is unreasonable.
In reviewing sentences for reasonableness, we perform two steps. Pugh, 515 F.3d
at 1190. First, we must “‘ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the §
3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence -- including an explanation for any
deviation from the Guidelines range.’” Id. (quoting Gall v. United States, 128
2
S.Ct. 586, 597 (2007)).1 If we conclude that the district court did not procedurally
err, we must consider the “‘substantive reasonableness of the sentence imposed,
under an abuse-of-discretion standard,’” based on the “‘totality of the
circumstances.’” Id. (quoting Gall, 128 S. Ct. at 597). “The party who challenges
the sentence bears the burden of establishing that the sentence is unreasonable in
the light of both th[e] record and the factors in section 3553(a).” United States v.
Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006) (internal quotation omitted).
Bethel has not shown that his sentence is substantively unreasonable.2
Bethel had an extensive criminal history and was a habitual traffic offender, and
his present case stemmed from an arrest for domestic violence. In addition, he was
sentenced at the low-end of the advisory Guidelines range.3 Accordingly, the
1
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to protect
the public; (5) the need to provide the defendant with educational or vocational training or medical
care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the pertinent
policy statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing
disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
2
In his reply brief, Bethel concedes that he is not challenging the procedural
reasonableness of his sentence.
3
See also Rita, 127 S. Ct. at 2462 (holding that a court of appeals may afford a
presumption of reasonableness to a within-Guidelines sentence); United States v. Campbell, 491
F.3d 1306, 1314 n.8 (11th Cir. 2007) (noting that, although we have not normally afforded a within-
Guidelines sentence a presumption of reasonableness, Rita calls that policy into question).
3
district court did not abuse its discretion by imposing a 70-month sentence.
We likewise find no merit to Bethel’s contention that the district court erred
by enhancing his sentence based on a prior conviction that was not alleged in the
indictment. Under 8 U.S.C. § 1326(a), an alien who has been deported and then
reenters the United States without permission is subject to a maximum sentence of
two years’ imprisonment. 8 U.S.C. § 1326(a). However, the maximum sentence
increases to 20 years’ imprisonment if the alien was convicted of an “aggravated
felony” before removal. 8 U.S.C. § 1326(b)(2).
In Almendarez-Torres, 523 U.S. 224 (1998), the Supreme Court held that a
defendant’s prior convictions did not need to be alleged in the indictment to be
used in sentencing. The Supreme Court reaffirmed this holding in Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000), stating that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” However, in Apprendi and subsequent decisions the Supreme Court has
cast doubt on the continuing vitality of Almendarez-Torres, while not actually
overruling it. See, e.g., Apprendi, 530 U.S. at 489-90; Shepard v. United States,
544 U.S. 13, 27-28 (2005) (Thomas, J., concurring in part and concurring in the
judgment). Nevertheless, we have stated that we will continue to apply
4
Almendarez-Torres until the Supreme Court chooses to overrule it. E.g., United
States v. Dowd, 451 F.3d 1244, 1253 (11th Cir. 2006); United States v. Greer, 440
F.3d 1267, 1273-76 (11th Cir. 2006).
The Supreme Court has held that when a court determines the “character” of
a previous conviction it may examine “the statutory definition, charging
document, written plea agreement, transcript of plea colloquy, and any explicit
factual finding by the trial judge to which the defendant assented,” but it may not
look to police reports or complaint applications to determine facts about a
defendant’s prior conviction. Shepard, 544 U.S. at 16 (determining whether a
conviction qualified as a violent felony under the Armed Career Criminal Act).
We held that Shepard does not limit a sentencing court from determining the
character of a prior conviction from the statutory elements of the offense. Greer,
440 F.3d at 1275.
Under this case law, the district court did not err by considering Bethel’s
prior conviction when enhancing his sentence. Moreover, Bethel has not put forth
anything from the record to show that the district court considered something
other than the statutory elements of the prior conviction when determining its
character. Accordingly, Bethel’s sentence enhancement was constitutional.
AFFIRMED.
5