Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-12-2007

USA v. Diaz-Hernandez
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5245




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"USA v. Diaz-Hernandez" (2007). 2007 Decisions. Paper 959.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/959


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NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                  Case No: 05-5245

                          UNITED STATES OF AMERICA

                                             v.


                      CARLOS ENRIQUE DIAZ-HERNANDEZ,

                                            Appellant


                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                                District Court No.: 04-02J
                     District Judge: The Honorable Kim R. Gibson


                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                    June 4, 2007

                 Before: SMITH, COWEN, and SILER, Circuit Judges*

                                 (Filed: June 12, 2007)


                                       OPINION


SMITH, Circuit Judge.

       Carlos Enrique Diaz-Hernandez is a native and citizen of Mexico. He was

convicted in Bedford County, Pennsylvania of assault and possession of a firearm. Diaz-


   *
   The Honorable Eugene E. Siler, Senior Circuit Judge for the United States Court of
Appeals for the Sixth Circuit, sitting by designation.
Hernandez returned to Mexico on April 15, 2003, pursuant to an order of removal issued

by an immigration judge in York, Pennsylvania. He understood that he could not reenter

the United States without permission.

       Diaz-Hernandez illegally reentered the United States on May 1, 2003. On October

25, 2003, the Pennsylvania State Police found Diaz-Hernandez in Bedford, Pennsylvania.

Diaz-Hernandez was indicted under 8 U.S.C. § 1326 for knowingly and unlawfully

reentering the United States after having been removed. The District Court sentenced

him to 46 months imprisonment.

       Following the United States Supreme Court’s decision in United States v. Booker,

(2005), Diaz-Hernandez sought a remand for resentencing. This Court

granted the motion. The District Court imposed the same sentence. This appeal

followed.

       The District Court exercised jurisdiction over this action under 18 U.S.C. § 3231.

This Court has jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.

       Diaz-Hernandez argues that, because his prior conviction for an aggravated felony

increased his statutory maximum penalty, his prior conviction should have been charged

in the indictment and proven to the jury beyond a reasonable doubt. He maintains that

failure in either respect violates his rights under the Sixth Amendment.

       Diaz-Hernandez concedes that the Supreme Court has settled this issue in

Almendarez-Torres v. United States, 

(1998). Diaz-Hernandez

                                             2
acknowledges that he pursues this appeal only to preserve this claim should the Supreme

Court alter or overturn 

.

       In Almendarez-Torres, the Supreme Court held that 8 U.S.C. § 1326(b)(2), which

sets a higher statutory maximum penalty for violators with a prior conviction for an

aggravated felony, is a penalty provision, not a separate 

.

Therefore, the Government is not required by the Sixth Amendment to charge and prove

the prior conviction beyond a reasonable doubt. 

for the

principle that prior convictions that increase the statutory maximum penalty for an

offense are not elements of the offense and thus may be found by a district court by a

preponderance of the evidence. See 

has held that Almendarez-Torres survived the Supreme Court’s

decision in 

. See United States v. Ordaz, 

, 241 (3d

Cir. 2005). We will affirm the District Court’s judgment.




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