               Not for Publication in West's Federal Reporter
              Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                       For the First Circuit


No. 05-1496

                             UNITED STATES,

                                Appellee,

                                     v.

                        LISANDY MONTERO-DIAZ,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Jay A. Garcia-Gregory, U.S. District Judge]



                                  Before

                     Torruella, Circuit Judge,
                   Stahl, Senior Circuit Judge,
                     and Lipez, Circuit Judge.




     Raymond Rivera Esteves on Anders brief.
     Lisandy Montero-Diaz on brief pro se.



                             April 3, 2006
            Per Curiam. Appellant Lisandy Montero-Diaz, a citizen of

the Dominican Republic, pled guilty (without a plea agreement) to

one count of re-entering the United States after removal subsequent

to the commission of an aggravated felony, in violation of 8 U.S.C.

§ 1326(a)(2) and (b)(2).              Because he was sentenced after the

Supreme Court's decision in United States v. Booker, 543 U.S. 220

(2005),    the     sentencing       guidelines   were   advisory   rather     than

mandatory.        In calculating the guidelines range, the sentencing

court applied a 16-level increase to the base offense level,

pursuant     to    U.S.S.G.     §    2L1.2(b)(1)(A),     and   arrived   at    an

imprisonment range of 57 to 71 months. Defense counsel requested a

sentence below that range, based on the defendant's personal

circumstances.        The court, treating the guidelines as purely

advisory, imposed a sentence of 57 months, for which it gave a

"reasoned explanation."         United States v. Jimenez-Beltre, __ F.3d

__, 2006 WL 562154 (1st Cir., March 9, 2006).

            Counsel for defendant has filed a motion to withdraw and

a brief pursuant to Anders v. California, 386 U.S. 738 (1967).

Appellant has filed a supplemental pro se brief.               For the reasons

stated below, and after a full examination of the record, we

conclude that this appeal presents no meritorious issues.

            I. Issues Raised in Anders Brief

            The Anders brief addressed appellant's argument that the

district court erred in applying a 16-level enhancement in its


                                         -2-
guidelines calculation where the sentence served was allegedly less

than thirteen months.    We agree with the conclusion in the Anders

brief that this issue is without merit. The argument is foreclosed

by this court's decision in United States v. Carrasco-Mateo, 389

F.3d 239 (1st Cir. 2004), cert. denied, __ U.S. __, 125 S. Ct. 1721

(2005).   The Anders brief also correctly states that there is no

Booker error where the court, treating the guidelines as advisory,

bases   enhancements   upon   factual   findings   not   charged   in   the

indictment and proven beyond a reasonable doubt, or admitted by the

defendant.   See United States v. Antonakopoulos, 399 F.3d 68, 75

(1st Cir. 2005).

           II. Issues Raised in Pro Se Brief

           A. Ex Post Facto Clause

           Montero-Diaz argues that the effect of the Court's Booker

decision, which changed the sentencing guidelines from a mandatory

to an advisory system, offends the Constitution's ex post facto

clause.   The ex post facto clause prohibits a legislative increase

in punishment after the event.    See United States v. Lata, 415 F.3d

107 (1st Cir. 2005).   In this case, however, Montero-Diaz' sentence

did not exceed the guideline maximum (71 months).         Moreover, this

court has held that the ex post facto clause "does not apply of its

own force to changes worked by judicial decisions."          Id. at 110.

And the sentence, at the bottom of the applicable guideline range,




                                  -3-
does not raise any fair warning concerns under the due process

clause.   See id. at 112.

            B. Nondelegation Doctrine

            Appellant    argues       that     the    Sentencing    Commission's

promulgation    of   U.S.S.G.     §    2L1.2    violates     the   nondelegation

doctrine barring Congress from delegating its legislative power to

another   branch.       The   Supreme    Court       has   held,   however,   that

"Congress' delegation of authority to the Sentencing Commission [to

promulgate sentencing guidelines] is sufficiently specific and

detailed to meet constitutional requirements." Mistretta v. United

States, 488 U.S. 361, 374 (1989).

            To the extent that appellant is arguing that, in light of

the Apprendi, Blakely and Booker line of cases, Mistretta's holding

no longer has force, the Supreme Court has rejected such an

argument:


            [T]he Commission's authority to identify the
            facts relevant to sentencing decisions and to
            determine the impact of such facts on federal
            sentences is precisely the same whether one
            labels such facts "sentencing factors" or
            "elements" of crimes.       Our decision in
            Mistretta, 488 U.S., at 371, upholding the
            validity of the delegation of that authority,
            is unaffected by the characterization of such
            facts, or by the procedures used to find such
            facts in particular sentencing proceedings.

Booker, 543 U.S. at 242.       The Court has stated that its holding in

Booker "does not call into question any aspect of our decision in

Mistretta." Booker, 543 U.S. at 242.

                                       -4-
              C. Double Jeopardy Clause

              Appellant argues that the sentencing court's application

of § 2L1.2(b) violated the double jeopardy clause because it

imposed an additional punishment for the prior state conviction for

which he was previously sentenced.                Such challenges to enhanced

sentences based on prior offenses have been rejected by the Supreme

Court:

              In   repeatedly  upholding   such  recidivism
              statutes, we have rejected double jeopardy
              challenges because the enhanced punishment
              imposed for the later offense "is not to be
              viewed as either a new jeopardy or additional
              penalty for the earlier crimes," but instead
              as "a stiffened penalty for the latest crime,
              which is considered to be an aggravated
              offense because a repetitive one."

Witte    v.   United    States,    515     U.S.   389,       400   (1995)(citations

omitted).

              Appellant argues that the Apprendi, Blakely, Booker line

of cases calls into question this reasoning because "[t]he prior

convictions     are    now    recognized    to    be   a   full    element   of   the

aggravated      illegal      reentry   offense."       Pro    Se   Brief,    p.   32.

Appellant's argument has no merit because it is based on an

erroneous premise that prior convictions are now to be treated as

elements of the offense:

              Apprendi's explicit exemption of sentence
              enhancements    based   on    prior   criminal
              convictions    from   the    scope   of    its
              constitutional holding left intact the Supreme
              Court's earlier decision in Almendarez-Torres
              v. United States, 523 U.S. 224 (1998). There,

                                         -5-
          the Court endorsed treating prior convictions
          as sentencing factors rather than elements of
          federal criminal offenses. See Almendarez-
          Torres, 523 U.S. at 226-27.     "We have ruled
          with a regularity bordering on the monotonous
          that, given the explicit exception and force
          of   Almendarez-Torres,   the    rationale    of
          Apprendi   does   not   apply    to    sentence-
          enhancement   provisions   based    upon   prior
          criminal convictions." United States v. Moore,
          286 F.3d 47, 51 (1st Cir. 2002). Nothing in
          Blakely or Booker alters the continuing
          vitality of the Almendarez-Torres exception to
          Apprendi.

United States v. Ivery, 427 F.3d 69, 74-75 (1st Cir. 2005)(emphasis

added), cert. denied, __ S. Ct. __, 2006 WL 236293 (Feb. 27, 2006);

see also Jimenez-Beltre, supra, at * 5 (noting that court is bound

to follow Almendarez-Torres until it is expressly overruled).

          D. Ineffective Assistance of Counsel

          Appellant argues that counsel was ineffective in failing

to argue to the sentencing judge that a downward departure from the

guidelines range was warranted to avoid sentencing disparities and

equal protection concerns resulting from the absence of a "fast

track" system for prosecuting and sentencing illegally re-entering

aliens in Puerto Rico.    This court has rejected equal protection

challenges to the fast track program on the ground that similarly

situated defendants in fast track jurisdictions could receive a

four-level departure not available to defendants in non-fast track

jurisdictions. See United States v. Melendez-Torres, 420 F.3d 45,

52-53 (1st Cir. 2005).   This court has also stated, in dicta, that



                                -6-
               [i]t is arguable that even post-Booker, it
               would never be reasonable to depart downward
               based on disparities between fast-track and
               non-fast-track jurisdictions given Congress'
               clear (if implied) statement in the PROTECT
               Act provision that such disparities are
               acceptable.

United States v. Martinez-Flores, 428 F.3d 22, 30 n. 3 (1st Cir.

2005), cert. denied, __ S. Ct. __, 2006 WL 236308 (Feb. 27, 2006);

See also Jimenez-Beltre, supra, (noting that [w]hether it would

even be permissible to give a lower sentence on the ground [of

"fast track" disparities] is itself an open question").

               Defense counsel argued at sentencing for a departure

below    the    advisory     guideline       range,   on    the   basis   of   various

personal circumstances of the defendant, including no history of

violent offenses, and the fact that his last conviction was over

ten years' old.         In light of our precedents quoted above, the

argument that defense counsel was ineffective for failing to also

request a downward departure on "fast track" grounds is without

merit.

               III. Other Potential Issues

               Post-Booker,      this        court    reviews        sentences    for

reasonableness. "Under the post-Booker approach, 'district courts,

while    not    bound   to   apply     the    Guidelines,     must    consult    those

Guidelines and take them into account when sentencing,' subject to

review    by     the    courts    of     appeals      for    'unreasonableness.'"

Antonakopoulos, 399 F.3d at 76 (quoting Booker, supra). Our recent


                                         -7-
decision,    Jimenez-Beltre,   supra,   provides   guidance   for   the

determination and review of post-Booker sentences. Id. at * 1.       A

review of the record in this case, and particularly the sentencing

transcript, reveals that the district court's sentencing of the

appellant was consistent with the approach we approved in Jimenez-

Beltre.     The court first calculated the applicable guidelines

range.    In doing so, the court stated several times that "its

reference to the Guidelines is on a purely advisory basis."

            In addition to consulting the guidelines on an advisory

basis, the sentencing court also took into account the reasons

cited by defendant for imposing a sentence below the guidelines

range, and "all those factors that are found in 18 U.S.C. §

3553(a)."   The court gave a "reasoned explanation" why the factors

cited by defendant did not warrant a sentence below the guidelines

range. Id. at * 3. Specifically, the court relied upon defendant's

record of prior convictions and his repeated illegal re-entries

into the country, and the need to promote respect for the law and

to avoid unwarranted sentencing disparities.       On this record, an

argument that the district court acted unreasonably in declining to

impose a sentence below the guidelines range would be without

merit.

            Counsel's motion to withdraw is granted, and appellant's

conviction and sentence are affirmed.     See 1st Cir. R. 27(c).




                                 -8-
