Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-8-2005

USA v. Llano
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3745




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"USA v. Llano" (2005). 2005 Decisions. Paper 1044.
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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 04-3745


                          UNITED STATES OF AMERICA

                                           v.

                                FRANCISCO LLANO,
                                    a/k/a Chluo,
                                   a/k/a Chullo,

                                                Francisco Llano,
                                                       Appellant


                     Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                     (D.C. Criminal Action No. 02-cr-00187-11)
                    District Judge: Honorable William W. Caldwell


                      Submitted Under Third Circuit LAR 34.1(a)
                                    June 7, 2005

           Before: AMBRO, STAPLETON and ALARCÓN*, Circuit Judges

                              (Opinion filed June 8, 2005)


                                       OPINION




       * Honorable Arthur L. Alarcón, Senior United States Circuit Judge for the Ninth
Circuit Court of Appeals, sitting by designation.
AMBRO, Circuit Judge

       Because we write solely for the benefit of the parties, we do not recount the facts

giving rise to this appeal. Appellant Francisco Llano’s sole challenge is to the District

Court’s assigning Criminal History Category III to Llano’s past convictions for purposes

of determining Llano’s sentence under the United States Sentencing Guidelines

(“Guidelines”).1

       Specifically, the probation officer who drafted Llano’s pre-sentence report

determined that Llano had two applicable convictions, each of which resulted in one

criminal history point under the Guidelines. Because Llano was on probation for the first

conviction when he was convicted of the offense giving rise to this appeal, he was

assessed two additional criminal history points, bringing his total number of points to four

and, therefore, placing him in Criminal History Category III.

       According to the pre-sentence report, Llano’s second conviction resulted from a

charge of obstruction of government administration under New York law, resulting in a

sentence of time served. In his objections to his pre-sentence report, Llano asserted that

he was “unable to confirm a conviction for ‘obstruction of governmental administration.’”

This objection notwithstanding, Llano offered no evidence that the information in the pre-




 1
  Llano does not argue that his challenge to his sentence should be determined by the
District Court in the first instance in light of United States v. Booker, 

(2005).

                                             2
sentence report was incorrect and merely took the position that he could not recall

whether he had been so convicted. The District Court then assigned Criminal History

Category III to Llano.

       As the Supreme Court stated, “other 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.” Apprendi v. New Jersey, 

, 490 (2000). Further, we recently held that a “District Court’s determination

regarding the facts of [a defendant’s] prior convictions did not violate the Sixth

Amendment, notwithstanding that the sentences were based, in part, on facts found by a

judge rather than a jury.” United States v. Ordaz, 

, 241 (3d Cir. 2005). We

also indicated that “nothing” in United States v. Booker, 

(2005), “holds

otherwise.” 

.

       Llano attempts to sidestep this line of cases by arguing that the District Court’s

failure to exclude the obstruction conviction violated his due process rights under the

Fifth Amendment, contending that due process requires a “higher standard of proof at a

sentencing proceeding” than that employed by the District Court. This argument,

however, is unpersuasive because the precedents involved deal not only with the Sixth

Amendment’s right to a jury trial, but as well with due process rights under the Fifth

Amendment. See, e.g., 

(explaining that the “Due Process

Clause of the United States Constitution requires that the finding of bias upon which his



                                              3
hate crime sentence was based must be proved to a jury beyond a reasonable doubt”).

      Accordingly, we affirm the judgment of the District Court.




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