United States v. Manuel Salvador Ibarra Suarez , 132 F. App'x 786 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 16, 2005
No. 04-13284 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 04-20086-CR-KAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL SALVADOR IBARRA-SUAREZ,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 16, 2005)
Before BIRCH, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Manuel Salvador Ibarra-Suarez appeals his sentence for re-entering the
United States after having previously been deported, in violation of 8 U.S.C.
sections 1326(a) and (b)(2). Ibarra-Suarez argues that the district court erred when
it enhanced his sentence based upon a judicial finding that he had previously been
convicted of a crime of violence. We disagree and affirm.
Ibarra-Suarez pleaded guilty to re-entering the United States after having
previously been deported, and, during the plea colloquy, admitted that he had
previously been convicted of sexual battery. Although the conduct underlying this
previous conviction was not specifically described, the Presentence Investigation
Report (PSI) stated that the conviction resulted from a rape. Ibarra-Suarez did not
file any objections to the PSI. The district court concluded that Ibarra-Suarez had
previously been convicted of a crime of violence and imposed a sixteen-level
enhancement. Ibarra-Suarez did not object to the enhancement.
Ibarra-Suarez argues for the first time on appeal, however, that the
enhancement violated his Sixth Amendment rights because the district court
enhanced his sentence based on facts that were neither charged in the indictment
nor found by a jury beyond a reasonable doubt. In making his Sixth Amendment
argument, Ibarra-Suarez cites Blakely v. Washington, 542 U.S. ___, 124 S. Ct.
2531 (2004), because his brief was filed before the Supreme Court decided United
States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005). Because his argument is
essentially one under Booker, we discuss it as such.
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Errors raised for the first time on appeal are reviewed for plain error. See
United States v. Candelario, 240 F.3d 1300, 1306 (11th Cir. 2001). To satisfy
plain error, the defendant must establish that (1) the district court committed
“error,” (2) the error was plain, and (3) the error “affected substantial rights.”
United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 1776 (1993). An
error affects substantial rights if it “affected the outcome of the district court
proceedings.” Id. at 734, 113 S. Ct. at 1778. If these criteria are met, we have the
discretion to correct the plain error if it “seriously affect[s] the fairness, integrity,
or public reputation of judicial proceedings.” Id. at 732, 113 S. Ct. at 1776(internal quotations and citation omitted).
Ibarra-Suarez has not established plain error. First, Booker does not apply
to the use of a previous conviction to enhance a sentence. On the contrary, the
Supreme Court in Booker reaffirmed its holding that “[a]ny 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.”
Booker, 125 S. Ct. at 756 (emphasis added); United States v. Shelton, __ F.3d __,
2005 WL 435120, at *3 (11th Cir. Feb. 25, 2005). Second, Ibarra-Suarez admitted
his previous conviction at his plea hearing and did not object to the factual
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statements in the PSI. See Shelton, 2005 WL 435120, *3. Finally, Ibarra-Suarez
did not object to the calculation of the guideline range in the district court nor has
he presented any evidence to show that his substantial rights were affected. See
United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir. 2005).
AFFIRMED.
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