[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT DEC 12, 2008 No. 08-10008 THOMAS K. KAHN ________________________ CLERK
D. C. Docket No. 07-20647-CR-JAL
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANNA GONZALEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida _________________________
(December 12, 2008)
Before DUBINA, BLACK and FAY, Circuit Judges.
PER CURIAM: Anna Gonzalez appeals her 50-month sentence imposed after she pled guilty
to illegally reentering the United States after having been deported, in violation of
8 U.S.C. § 1326(a), (b)(1). After reviewing the record and the parties’ briefs, we
discern no reversible error.
I. BACKGROUND
The maximum sentence for a violation of 8 U.S.C. § 1326(b)(1) is ten years.
8 U.S.C. § 1326(a), (b)(1). Applying the 2007 version of the Sentencing
Guidelines, the probation officer assigned Gonzalez a total offense level of 21 and
criminal history category III, with a Guidelines range of 46 to 57 months’
imprisonment.1
Section 2L1.2(a) of the Sentencing Guidelines provides a base offense level
of 8 for a person who unlawfully enters or remains in the United States. If a
defendant “previously was deported, or unlawfully remained in the United States,
after – (A) a conviction for a felony that is . . . (ii) a crime of violence[,]” the
offense level increases by 16. U.S.S.G. § 2L1.2(b)(1)(A)(ii). The district court
applied § 2L1.2(b)(1)(A)(ii) to increase Gonzalez’s offense level by 16 based on
1 The probation officer calculated this Guidelines range as follows: a base offense level of 8 under U.S.S.G. § 2L1.2(a); a 16-level increase because she had been previously deported after being convicted of aiding and abetting a bank robbery, a crime of violence pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii); and a 3-level deduction for acceptance of responsibility and assistance into the investigation of her own misconduct pursuant to U.S.S.G. § 3E1.1(a), (b).
2 her prior “crime of violence” conviction. Since Gonzalez’s sentencing, the
Sentencing Commission amended the commentary to § 2L1.2. Effective
November 1, 2008, application note 7 to § 2L1.2 now reads, in part:
Departure Consideration–There may be cases in which the applicable offense level substantially overstates or understates the seriousness of a prior conviction. In such a case, a departure may be warranted. Examples: . . . (B) In a case in which subsection (b)(1)(A) applies, and the prior conviction does not meet the definition of aggravated felony at 8 U.S.C. § 1101(a)(43), a downward departure may be warranted.
U.S.S.G. § 2L1.2, cmt. n.7 (2008).
Gonzalez was convicted in 1985 in the United States District Court for the
Northern District of Illinois for aiding and abetting a bank robbery. There is no
dispute this conviction qualifies as a “crime of violence” under § 2L1.2. See
U.S.S.G. § 2L1.2, cmt. n.1 (defining “crime of violence” to include “robbery”);
U.S.S.G. § 2L1.2, cmt. n.5 (“Prior convictions of offenses counted under
subsection (b)(1) include the offenses of aiding and abetting . . . .”). The
conviction does not, however, constitute an “aggravated felony” as defined by the
Immigration and Nationality Act (INA) because her term of imprisonment was less
than one year. See 8 U.S.C. § 1101(a)(43).
Gonzalez challenges her sentence and contends: (1) the district court erred
by imposing the 16-level increase because her prior conviction did not qualify as
3 an “aggravated felony”; (2) her 50-month sentence is both procedurally and
substantively unreasonable; and (3) her Fifth and Sixth Amendment rights were
violated when the district court enhanced her sentence based on a prior conviction
not alleged in the indictment or proven to the jury beyond a reasonable doubt.
II. DISCUSSION
A. Enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii)
We review objections to the applicability of U.S.S.G. § 2L1.2 not raised in
the district court for plain error and can only make corrections if (1) there is an
error; (2) the error was plain, clear, or obvious; and (3) the error affected
substantial rights. United States v. Hernandez-Gonzalez, 318 F.3d 1299, 1301
(11th Cir. 2003). If these criteria are met, we have discretion to correct the error,
but should correct the error only if it “seriously affects the fairness, integrity or
public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725,
731, 113 S. Ct. 1770, 1776 (1993) (quotation and alteration omitted). “Where
errors could have cut either way and uncertainty exists, the burden is the decisive
factor in the third prong of the plain error test, and the burden is on the defendant.”
United States v. Rodriguez, 398 F.3d 1291, 1300 (11th Cir. 2005).
We conclude from the record there is no error in this case as to the district
court’s application of the Guidelines. Gonzalez contends § 2L1.2's background,
4 history, structure, and commentary lead to the conclusion § 2L1.2(b)(1)(A)(ii) only
applies to crimes of violence also qualifying as aggravated felonies. The plain
language of § 2L1.2, however, permits a 16-level enhancement for a prior
conviction of a “crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). Further, the
recently amended commentary uses permissive, rather than mandatory,
language–the commentary only states a downward departure may be warranted if
the prior conviction does not meet the definition of “aggravated felony.” Because
Gonzalez can point to no authority requiring a “crime of violence” to also
constitute an “aggravated felony,” as defined in 8 U.S.C. § 1101(a)(43), the district
court committed no error, plain or otherwise.
Even assuming, arguendo, Gonzalez could satisfy the first two prongs of the
plain error analysis, she cannot satisfy the third prong. To satisfy the third prong,
Gonzalez must show the error affected her substantial rights, which essentially
requires the error to “have affected the outcome of the district court proceedings.”
Rodriguez, 398 F.3d at 1299 (quotation omitted). Moreover, Gonzalez bears the
burden of persuasion with respect to establishing such prejudice. Id. “This burden
of showing prejudice to meet the third-prong requirement is anything but easy.” Id.
We conclude Gonzalez cannot meet this burden. First, as previously
discussed, the amended commentary uses permissive “may” language. U.S.S.G.
5 § 2L1.2, cmt. n.7 (2008). On remand, then, the district court would still have
discretion to apply the 16-level enhancement authorized by § 2L1.2(b)(1)(A)(ii).
Second, there is nothing in the record to indicate the district court would rely on the
recently amended commentary to impose a different sentence on remand. Rather,
the court noted Gonzalez’s “total disrespect for being any kind of law-abiding
person” and stated Gonzalez had “demonstrated nothing but disregard for the
law.”2 (D.E. 32 at 9-10) Moreover, the district court sentenced Gonzalez near the
middle of her Guidelines range, rather than the bottom, further indicating the
outcome would be no different on remand. Because Gonzalez bears the burden of
persuasion, and because she cannot establish her substantial rights were affected,
Gonzalez cannot satisfy the third prong of the plain error test. Accordingly, we
need not address the fourth prong.
B. Reasonableness of Gonzalez’s Sentence
We review the final sentence imposed by the district court for
reasonableness. United States v. Booker, 543 U.S. 220, 264, 125 S. Ct. 738, 767
2 As the district court noted, Gonzalez’s criminal record “is just so varied and so long and so bad.” (D.E. 32 at 10) In addition to her status as an illegal alien, and her conviction for aiding and abetting a bank robbery, Gonzalez has previously been convicted of, inter alia, failure to appear, battery, driving with a revoked license, forgery, grand theft of a vehicle, theft, aiding escape, and child abuse. (PSI para. 24-32) Gonzalez has also been arrested 18 times for various other offenses and has used multiple aliases, driver’s licenses, and Social Security numbers. (PSI para. 37-54).
6 (2005). Specifically, the district court must impose a procedurally and
substantively reasonable sentence. Gall v. United States, 552 U.S. ___, 128 S. Ct.
586, 597 (2007). A sentence may be procedurally unreasonable if the district court
improperly calculates the Guidelines range, treats the Guidelines as mandatory
rather than advisory, fails to consider the appropriate statutory factors, selects a
sentence based on clearly erroneous facts, or fails to adequately explain the chosen
sentence. Id. After an appellate court has determined the sentence is procedurally
sound, Gall directs the appellate court to review the substantive reasonableness of a
sentence under an abuse-of-discretion standard. Id. The review for substantive
unreasonableness involves examining the totality of the circumstances, including
an inquiry into whether the statutory factors in § 3553(a) support the sentence in
question. Id. at __, 128 S. Ct. at 597-600.
In consideration of the § 3553(a) factors, the district court does not need to
discuss or state each factor explicitly. United States v. Scott, 426 F.3d 1324, 1329
(11th Cir. 2005). An acknowledgment the district court has considered the
defendant’s arguments and the § 3553(a) factors will suffice. Id. at 1330. We will
defer to the district court’s judgment regarding the weight given to the § 3553(a)
factors unless the district court has made “a clear error of judgment” and has
imposed “a sentence that lies outside the range of reasonable sentences dictated by
7 the facts of the case.” United States v. McBride, 511 F.3d 1293, 1297-98 (11th Cir.
2007) (quotation omitted).
Pursuant to § 3553(a), the sentencing “court shall impose a sentence
sufficient, but not greater than necessary, to comply with the purposes set forth in
paragraph (2) of this subsection.” See 18 U.S.C. § 3553(a). These purposes
include, inter alia, promoting respect for the law, deterring criminal conduct, and
protecting the public from further crimes of the defendant. 18 U.S.C. § 3553(a)(2).
The sentencing court must also consider the following factors in determining a
particular sentence: the nature and circumstances of the offense and the history and
characteristics of the defendant, the kinds of sentences available, the Guidelines
range, the pertinent policy statements of the Sentencing Commission, the need to
avoid unwarranted sentence disparities, and the need to provide restitution to
victims. 18 U.S.C. § 3553(a)(1), (3)-(7). We ordinarily expect a sentence within
the Guidelines range to be reasonable, and the appellant has the burden of
establishing the sentence is unreasonable in light of the record and the § 3553(a)
factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
Gonzalez cannot show the court imposed a procedurally or substantively
unreasonable sentence. The district court properly calculated her Guidelines range,
treated the range as advisory, considered all the statutory factors, and imposed a
8 sentence near the middle of the range and supported by the statutory factors.
Furthermore, Gonzalez’s sentence is well below the maximum ten-year sentence
available under 8 U.S.C. 1326(b)(1) for reentry after conviction of a felony (other
than an aggravated felony).
C. Proof of Prior Conviction
We review constitutional challenges to the application of the Sentencing
Guidelines not raised in the district court for plain error. United States v. Ward,
486 F.3d 1212, 1221 (11th Cir.), cert. denied, 128 S. Ct. 398 (2007).
In Almendarez-Torres v. United States, a defendant charged with illegally
reentering the United States after being deported under 8 U.S.C. § 1326(a) argued
he could not be sentenced to more than two years imprisonment because his prior
aggravated felonies were not mentioned in the indictment. 523 U.S. 224, 227, 118
S. Ct. 1219, 1222-23 (1998). The Supreme Court rejected his argument and held 8
U.S.C. § 1326(b)(2) is a penalty provision, not a separate crime, and “neither the
statute nor the Constitution requires the Government to charge . . . an earlier
conviction, in the indictment.” Id. at 226-27, 118 S. Ct. at 1222. The Almendarez-
Torres decision remains binding precedent. United States v. Dowd, 451 F.3d 1244,
1253 (11th Cir. 2006).
9 The district court did not err in enhancing Gonzalez’s sentence using a prior
conviction not alleged in the indictment or proven to a jury beyond a reasonable
doubt because such practice is permitted under Almendarez-Torres.
III. CONCLUSION
Because U.S.S.G. § 2L1.2(b)(1)(A)(ii) authorizes a 16-level enhancement for
a “crime of violence” conviction, the district court did not err in finding Gonzalez’s
previous conviction for aiding and abetting a bank robbery warranted the
application of such enhancement to Gonzalez’s sentence. Furthermore,
Gonzalez’s 50-month sentence is both procedurally and substantively reasonable,
and Gonzalez’s constitutional challenge to her sentence is meritless.
AFFIRMED.
10