Filed: Oct. 25, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS October 25, 2005 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III _ Clerk No. 04-41028 _ UNITED STATES OF AMERICA, Plaintiff - Appellee, versus SILVESTRE MEDINA-TORRES, Defendant - Appellant. _ Appeal from the United States District Court For the Southern District of Texas (No. 5:04-cr-00505) _ Before KING, Chief Judge, and BARKSDALE and CLEMENT, Circuit Judges. PER CURIAM:* Silvestre Medina-Torres pleaded
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS October 25, 2005 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III _ Clerk No. 04-41028 _ UNITED STATES OF AMERICA, Plaintiff - Appellee, versus SILVESTRE MEDINA-TORRES, Defendant - Appellant. _ Appeal from the United States District Court For the Southern District of Texas (No. 5:04-cr-00505) _ Before KING, Chief Judge, and BARKSDALE and CLEMENT, Circuit Judges. PER CURIAM:* Silvestre Medina-Torres pleaded g..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
October 25, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
__________________________ Clerk
No. 04-41028
__________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SILVESTRE MEDINA-TORRES,
Defendant - Appellant.
___________________________________________________
Appeal from the United States District Court
For the Southern District of Texas
(No. 5:04-cr-00505)
___________________________________________________
Before KING, Chief Judge, and BARKSDALE and CLEMENT, Circuit Judges.
PER CURIAM:*
Silvestre Medina-Torres pleaded guilty to being unlawfully present in the United States
following his deportation. He argues on appeal that his sentence should be vacated and his case
remanded because he was sentenced under the mandat ory Sentencing Guidelines system held
unconstitutional in United States v. Booker, 125 S. Ct. 738 (2005). We affirm.
I. FACTS AND PROCEEDINGS
Medina-Torres pleaded guilty to a one-count indictment charging him with illegal reentry
*
Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and
is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
subsequent to deportation. The presentence report (“PSR”) assessed a base offense level of eight
pursuant to UNITED STATES SENTENCING GUIDELINES (“U.S.S.G”) § 2L1.2. Sixteen levels were
added pursuant to U.S.S.G § 2L1.2(b)(1)(A)(i) because he had a prior conviction for a drug
trafficking offense for which the sentence imposed exceeded 13 months. Three levels were subtracted
pursuant to U.S.S.G § 3E1.1 for acceptance of responsibility, resulting in a total offense level of 21.
Three criminal history points placed Medina in Criminal History Category II. The guideline range
for imprisonment was 41 to 51 months. The guideline range for supervised release was at least two
years but not more than three years, pursuant to U.S.S.G § 5D1.2(a)(2). Neither party filed
objections to the PSR.
At the sentencing hearing, defense counsel noted that Medina-Torres had only one other
criminal conviction for a drug offense where he was probably a “mule,” or transporter. Counsel
further noted that the prior conviction was five years old and that it had resulted in a 24-month
sentence for Medina-Torres. Observing that Medina-Torres presently faced nearly twice that amount
of jail time, counsel requested a sentence at the low end of the guideline range. The government took
no position other than to agree that the guideline range had been properly calculated. The district
judge stated, “I’ll sentence him at the low end of the guidelines, which is 41 months. I believe we can
agree it is the lowest under the guidelines which I can sentence him to; is that correct?” Counsel for
both parties agreed. The district court sentenced Medina-Torres to 41 months of imprisonment and
imposed a three-year term of supervised release.
Medina-Torres timely appealed.
II. DISCUSSION
A. Validity of Sentence after Booker
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Medina-Torres argues that this Court should vacate his sentence and remand for resentencing
because he was sentenced under an unconstitutional, mandatory sentencing guideline scheme. He
concedes that because he did not object below, review is for plain error. See United States v. Mares,
402 F.3d 511, 520 (5th Cir. 2005), cert. denied, — S. Ct. —, (Oct. 3, 2005) (No. 04-9517). This
Court may correct forfeited errors only when the appellant shows the following factors: (1) there is
an error, (2) that is clear o r obvious, and (3) that affects his substantial rights. United States v.
Calverley,
37 F.3d 160, 162–64 (5th Cir. 1994) (en banc) (citing United States v. Olano,
507 U.S.
725, 731–37 (1993)). “[I]n most cases the affecting of substantial rights requires that the error be
prejudicial; it must affect the outcome of the proceeding.”
Calverley, 37 F.3d at 164. “To meet this
standard the proponent of the error must demonstrate a probability sufficient to undermine confidence
in the outcome.”
Mares, 402 F.3d at 521 (internal quotation and citation omitted). If these factors
are established, the decision to correct the forfeited error is within the sound discretion of the court,
and the court will not exercise that discretion unless the error seriously affects the fairness, integrity,
or public reputation of judicial proceedings.
Olano, 507 U.S. at 735–36.
Medina-Torres argues that under a plain-error analysis, his sentence was unreasonable and
therefore affected his substantial rights. He claims that at least a reasonable probability exists that
he would have received a lesser sentence if the district court had not been constrained by a mandatory
guideline regime. He asserts that prejudice should be presumed because the court’s error in assuming
that the guidelines were mandatory is structural and because the effect of the error cannot be
measured. He argues that if the error is neither structural nor presumptively prejudicial, it still meets
Olano’s third prong because the record shows at least a reasonable probability that but for the error,
the district court would have imposed a lower sentence. He notes that under an advisory system, the
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court could have considered the factors (1) that he had a single felony offense, (2) that on this
occasion, his only offense was the effort to return to the United States to seek employment, and (3)
that he had a family to support in Mexico. He also notes that the government was not opposed to
a sentence at the low end of the guidelines. Medina-Torres argues that this Court should exercise its
discretion and remand this case for resentencing because to let the sentence stand would impugn the
fairness, integrity, or public reputation of judicial proceedings.
In Booker, the Supreme Court applied its previous rulings in Apprendi v. New Jersey, 530
U.S. 466 (2000), and Blakely v. Washington,
542 U.S. 296 (2004), to the federal sentencing
guidelines, determining 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. The Court excised 18 U.S.C. § 3553(b)(1) of the Sentencing Reform Act, thereby
rendering the guidelines advisory as opposed to mandatory.
Id. at 764–65. District courts still must
consider the guidelines along with the sentencing factors set forth in 18 U.S.C. § 3553(a).
Id. at
757–69.
Medina-Torres does not complain that the district court made factual findings, other than his
prior conviction, not found by a jury or admitted by him to enhance his sentence. Medina-Torres’s
sentence was enhanced only on the basis of his prior conviction, and Booker reaffirmed the holding
in Apprendi that prior convictions are excluded from the facts that must be admitted or submitted to
the jury. Id. at 756. As such, Medina-Torres’s sentence was not affected by a Booker error or a
Sixth Amendment violation.
Id. at 750, 769. Nevertheless, the district court erred by imposing his
sentence pursuant to a mandatory application of the sentencing guidelines.
Id. at 768. The district
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court, therefore, committed the type of error experienced by the other respondent in Booker, Duncan
Fanfan. See id. at 750, 768–69.
This Court has held that the imposition of a sentence under a mandatory application of the
guidelines, even in t he absence of a Sixth Amendment violation, is “error” that is “plain.” United
States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir. 2005) cert. denied, — S. Ct. —, (Oct.
3, 2005) (No. 05-5556). Accordingly, Medina-Torres has met the first two prongs of the plain error
test. See
id. Medina-Torres has failed to show, however, that the error affected his substantial rights.
He has pointed to nothing in the record indicating that the sentencing judge would have reached a
different conclusion under an advisory scheme.** Accordingly, we find no plain error.
B. Constitutionality of 8 U.S.C. § 1326(b)
Medina-Torres argues that the “felony” and “aggravated felony” provisions of 8 U.S.C.
§ 1326(b)(1) & (2) are unconstitutional. He argues that under the reasoning of Apprendi, § 1326(b)
is unconstitutional because it treats a prior conviction as a sentence enhancement rather than an
element of the offense. Medina-Torres concedes that his argument is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 235 (1998), but raises the issue to preserve possible Supreme
Court review.
Neither Apprendi nor subsequent Supreme Court decisions have overruled Almendarez-
Torres. See Apprendi, 530 U.S. at 489–90; United States v. Dabeit,
231 F.3d 979, 984 (5th Cir.
**
Although Medina-Torres does not raise the issue of the district judge’s comment that he would
impose the lowest sentence possible under the guidelines, we note, out of an abundance of caution,
that this comment does not indicate a violation of Medina-Torres’s substantial rights. “[T]he fact that
the sentencing judge imposed the minimum sentence under the Guideline range . . . alone is no
indication that the judge would have reached a different conclusion under an advisory scheme.”
United States v. Bringier,
405 F.3d 310, 318 n.4 (5th Cir. 2005) (citing
Mares, 402 F.3d at 521-22).
5
2000). In fact, the Court in Booker noted that its holding applied to “any fact (other than a prior
conviction).” Booker, 125 S. Ct. at 756 (emphasis added); see also Shepard v. United States,
125
S. Ct. 1254, 1262–63 (2005)(indicating continuing force of Almendarez-Torres). Medina-Torres’s
contention provides no basis for relief.
III. CONCLUSION
Medina-Torres’s sentence is AFFIRMED.
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