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


8-10-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4768




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Recommended Citation
"USA v. Santos" (2005). 2005 Decisions. Paper 712.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/712


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                                                                         NOT PRECEDENTIAL

                           UNITED STATES COURT OF APPEALS
                                FOR THE THIRD CIRCUIT
                                _______________________

                                    Nos. 04-4768 & 05-1244
                                   _______________________

                                UNITED STATES OF AMERICA

                                                 v.

                                  JULIO ALBERTO SANTOS,

                                             Appellant in No. 04-4768

                                UNITED STATES OF AMERICA

                                                 v.

                                  JULIO ALBERTO SANTOS,
                              also known as Rev. Roberto Figueroa

                                       Julio Alberto Santos,

                                             Appellant in No. 05-1244
                                    ______________________

                         On Appeal from the United States District Court
                             For the Eastern District of Pennsylvania
                                   (D.C. Nos. 04-286 & 04-418)
                         District Judge: Honorable Mary A. McLaughlin
                                    _____________________

                        Submitted pursuant to Third Circuit LAR 34.1(a)
                                       on July 11, 2005

           Before: ALITO and BECKER, Circuit Judges, and SHADUR, District Judge*

                                     (Filed : August 10, 2005)



       *
              Honorable Milton I. Shadur, United States District Judge for the Northern District of
Illinois, sitting by designation.
                                   ________________________

                                    OPINION OF THE COURT
                                   ________________________

SHADUR, District Judge

       Julio Alberto Santos (“Santos”) was originally named in an indictment charging him with

illegal reentry into the United States after deportation, in violation of 8 U.S.C. §§1326(a) and

(b)(2). He was later charged by a separate criminal information with one count of escape in

violation of 18 U.S.C. §751. After the two cases were consolidated for disposition, the grand

jury returned a superseding indictment that again charged Santos with illegal reentry and added

(1) a notice of prior conviction, asserting that Santos had illegally reentered the United States

after being convicted of two aggravated felonies, and (2) a notice of an additional sentencing

factor as referred to in U.S.S.G. §2L1.2(b)(1)(A)(i)--one that charged Santos with having

previously been deported after a conviction for a drug trafficking offense for which the sentence

imposed exceeded 13 months.

       Santos entered a plea of guilty to the charges of illegal reentry and escape, but he made no

admissions concerning his criminal history during the plea colloquy. Accordingly, at sentencing

he objected to the use of prior convictions to enhance his sentence as an asserted violation of

Blakely v. Washington, 542 U.S. 296 (2004). Observing that it was bound by the rule of

Almendarez-Torres v. United States, 523 U.S. 224 (1998), the District Court overruled his

objection. That permitted the use of Santos’ prior convictions for sentencing purposes, which

effectively led to an increase in the statutory maximum sentence for the illegal reentry offense

from two years’ incarceration under 8 U.S.C. §1326(a) to 20 years’ incarceration under 8 U.S.C.



                                                  2
§1326(b)(2). Santos was sentenced to 70 months’ incarceration on the illegal reentry count and

60 months’ incarceration on the escape count (to run concurrently), 3 years’ supervised release, a

$200 special assessment and a $500 fine.

       Santos appeals his sentence under United States v. Booker, 543 U.S. ---, 125 S.Ct. 738

(2005) and challenges specifically the use of prior convictions whose existence he did not admit

to enhance his sentence. Because we have held in United States v. Ordaz, 398 F.3d 236, 241 (3d

Cir. 2005) that Almendarez-Torres remains good law after Booker, it was appropriate for the

District Court to have considered Santos’s prior conviction in deciding to sentence him under 8

U.S.C. §1326(b)(2). But as we have ruled in United States v. Davis, 407 F.3d 162 (3d Cir.

2005)(en banc), the remaining issues that Santos raises, and in particular the appropriate sentence

when the Sentencing Guidelines are properly treated as advisory rather than mandatory, are best

determined by the District Court in the first instance. Hence we VACATE Santos’ sentence and

REMAND for resentencing in accordance with Booker, pursuant to our decision in Davis.




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