                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT           FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                               JUNE 1, 2005
                                No. 04-10989
                                                             THOMAS K. KAHN
                            Non-Argument Calendar
                                                                 CLERK
                          ________________________

                   D.C. Docket No. 03-00341-CR-T-23-TGW

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

      versus

ANDRES BUJANDA-ROJAS,
a.k.a. Jaime Gonzalez San Miguel, Jr.,

                                                  Defendant-Appellant.

                         __________________________

               Appeal from the United States District Court for the
                           Middle District of Florida
                         _________________________

                               (June 1, 2005)


Before CARNES, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

      Andres Bujanda-Rojas appeals his conviction for reentry of a deported
alien, in violation of 8 U.S.C. § 1326(a) and (b)(2), and his sentence of 71 months’

imprisonment. On appeal, Bujanda-Rojas makes three claims: (1) that the district

court erred by denying his motion for a judgement of acquittal because the

evidence presented by the prosecution was insufficient to convict him; (2) that the

district erred by admitting testimony by a police officer stating that Bujanda-Rojas

was a “felon” and by denying his subsequent motion for a mistrial; and (3) that his

sentence was unconstitutionally enhanced 16 levels under U.S.S.G. §

2L1.2(b)(1)(A)(ii) because his prior convictions for making terroristic threats and

for aggravated assault were not stipulated to by him or found by a jury, but were

found by the sentencing judge, in violation of Blakely v. Washington, __ U.S. __,

124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and United States v. Booker, __ U.S.

__, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). We address these arguments in turn.

1. Sufficiency of the Evidence

      We review the sufficiency of the evidence supporting a criminal defendant’s

conviction de novo. United States v. Wright, 392 F.3d 1269, 1273 (11th Cir.

2004). In so doing, we view the evidence “in the light most favorable to the

government, with all reasonable inferences and credibility choices made in the

government’s favor,” and we “will not overturn a conviction on the grounds of

insufficient evidence unless no rational trier of fact could have found the essential

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elements of the crime beyond a reasonable doubt.” Id. (internal citations and

quotation marks omitted).

      Bujanda-Rojas only disputes the sufficiency of the evidence supporting one

essential element of the crime — whether he had been “deported” pursuant to 8

U.S.C. § 1326(a) and (b)(2). As part of its burden of establishing that Bujanda-

Rojas had been “deported,” the government was required to prove beyond a

reasonable doubt that he had been “physically removed from the United States.”

See United States v. Zelaya, 293 F.3d 1294, 1298 (11th Cir. 2002). Bujanda-Rojas

argues that while the government can prove that he was transported to the border

crossing between the United States and Mexico at Presidio, Texas, it did not

produce sufficient evidence at trial that he actually crossed the border into Mexico,

and therefore did not sufficiently establish that he had been “deported” as required

by law.

      The government’s evidence at trial included the following:

1.    Bujanda-Rojas’ “Warrant of Removal/Deportation” (“I-205 form”) containing
      signed statements by INS Agent Morales, who transported Bujanda-Rojas to
      the U.S.-Mexican border and testified at trial, that he had “witnessed” and
      “verified” Bujanda-Rojas’ departure from the United States.

2.    Testimony by Agent Morales that, while he had no independent recollection
      of seeing Bujanda-Rojas physically cross the border into Mexico, he followed
      substantially the same procedures for transporting deportees to the Presidio
      border crossing for the preceding fifteen years. Agent Morales testified that

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     each deportee to be transported to the border would arrive at his office
     accompanied by an I-205 form. He would compare the photo on the I-205
     form with each deportee to verify that the person identified by the form was the
     person to be deported. He would also place the names of the deportees with
     I-205 forms on a manifest and then verify that its contents were accurate by
     calling the names of each deportee and having them identify themselves. Only
     the deportees that responded properly to the roll call were allowed to board the
     vehicle bound for the border. Agent Morales also testified that he would
     transport the deportees to the U.S. side of the bridge that crossed into Mexico,
     past the U.S. port of entry but shy of the international border that lay at the
     middle of the bridge. He testified that he would park the van so that the
     deportees emerged facing the bridge crossing, and would “keep an eye on [the
     deportees] until everyone is gone [across the border into Mexico].” Finally, he
     testified that he would hand the manifest to the last deportee to disembark from
     the vehicle with instructions to give it to Mexican immigration authorities, who
     had been contacted by their U.S. counterparts by telephone beforehand with the
     number of deportees to be transported to the border on that particular trip, and
     who would independently check names on the manifest against the identities
     of the arriving deportees and inform U.S. immigration officials of any
     discrepancies. Agent Morales testified that Mexican officials had informed
     them of a discrepancy only once in the fifteen years that he had performed this
     job.

3.   Documentary evidence and testimony by Agent Morales demonstrating that the
     height of the bridge and the fences surrounding the border crossing would
     make it difficult for a deportee to avoid crossing the U.S.-Mexican border over
     the Presidio bridge unnoticed.

4.   Testimony by Immigration and Customs Enforcement (ICE) Special Agent
     Harry that Bujanda-Rojas told him in an interview after his arrest that he had
     been deported from the United States by the INS. Special Agent Harry
     conducted this interview in English, although English is not Bujanda-Rojas’
     native language, but testified that Bujanda-Rojas had “no problem”
     comprehending him in English and that he could understand Bujanda-Rojas’
     responses in English.

5.   A “Record of Sworn Statement in Affidavit Form,” filled out by Special Agent

                                         4
      Harry but which Bujanda-Rojas refused to sign, stating that Bujanda-Rojas
      responded affirmatively to the question, “Have you ever been ordered
      deported, excluded, or removed from the United States?”

      This evidence, viewed in the light most favorable to the government with all

reasonable inferences and credibility choices made in the government’s favor, is

sufficient to sustain Bujanda-Rojas’ conviction.

2. Admission of Evidence that Bujanda-Rojas was a “Felon” and Subsequent
Denial of Bujanda-Rojas’ Motion for a Mistrial

      The district court admitted at trial, over Bujanda-Rojas’ objections,

testimony from a sheriff’s deputy that U.S. immigration authorities told him that

Bujanda-Rojas was a “deported felon.” Bujanda-Rojas subsequently moved for a

mistrial on the basis that the comment was irrelevant and highly prejudicial, which

the district court denied, but instructed the jury to disregard “any information that

[the deputy] might have received from others against the Defendant.”

      We review a district court’s refusal to grant a mistrial for abuse of

discretion. United States v. Perez, 30 F.3d 1407, 1410 (11th Cir. 1994). “When a

curative instruction has been given to address some improper and prejudicial

evidence, we will reverse [a district court’s denial of a motion for mistrial] only if

the evidence is so highly prejudicial as to be incurable by the trial court’s

admonition.” Id. (internal citations and quotation marks omitted). Moreover,



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“[i]mproper and prejudicial testimony is less likely to mandate a mistrial when

there is other significant evidence of guilt which reduces the likelihood that the

otherwise improper testimony had a substantial impact upon the verdict of the

jury.” Id. at 1411 (internal citations and quotation marks omitted). Regardless of

the admissibility of the deputy’s testimony, in light of the other evidence of

Bujanda-Rojas’ guilt, it was not so prejudicial as to be incurable by the district

court’s curative instruction. Thus, the district court did not abuse its discretion by

refusing to grant a mistrial.

3. Blakely/Booker Claim

       Because Bujanda-Rojas raises his Blakely/Booker claim for the first time on

appeal, we review it for plain error. See United States v. Rodriguez, 398 F.3d

1291, 1297-98 (11th Cir. 2005), petition for cert. filed, (U.S. Feb. 23, 2005) (No.

04-1148). We may not correct an error that the appellant has failed to preserve

unless: (i) there is error; (ii) that is plain; (iii) that affects the appellant’s

substantial rights; and (iv) that affects the fairness, integrity, or public reputation

of judicial proceedings. Rodriguez, 398 F.3d at 1298.

       In Bujanda-Rojas’ case there was no constitutional Booker error. Pursuant

to Booker, the Sixth Amendment requires that “[a]ny fact (other than a prior

conviction) which is necessary to support a sentence exceeding the maximum

                                              6
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. Although Bujanda-Rojas’ sentence exceeded the

maximum authorized by the jury’s verdict, based on a fact neither admitted by

Bujanda-Rojas or proved to a jury beyond a reasonable doubt, Bujanda-Rojas’

sentence is constitutional because that fact constitutes a prior conviction.

      However, the district court did err by sentencing Bujanda-Rojas under a

mandatory sentencing guidelines scheme, even though it imposed a constitutional

sentence. United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005).

Moreover, such error is plain, even though the district court sentenced Bujanda-

Rojas before Booker was decided. Id. at 1331.

      But Bujanda-Rojas cannot satisfy the third prong of the plain-error test. To

satisfy the third prong of this test, a defendant raising a Booker claim must

demonstrate a “reasonable probability of a different result if the guidelines had

been applied in an advisory instead of binding fashion by the sentencing judge in

this case.” Rodriguez, 398 F.3d at 1301. Nothing in the record indicates that the

district court would have imposed a lesser sentence on Bujanda-Rojas had it

sentenced him under an advisory guidelines scheme. Moreover, the district court

imposed the longest sentence possible within the applicable guidelines range.

                                          7
Because Bujanda-Rojas cannot satisfy the third prong of the plain-error test, we

therefore will not correct the district court’s non-constitutional Booker error.

      Accordingly, we affirm Bujanda-Rojas’ conviction and sentence.

      AFFIRMED.




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