                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-30-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4008




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                                           NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                    No.04-4008


         UNITED STATES OF AMERICA

                            v.

           JOSE NUNEZ-HERNANDEZ,
                a/k/a Jose Nunez,
                a/k/a Alex Acosta,
              a/k/a Raphael Acosta,
                  a/k/a Francisco
                 Rondon-Aradia,

                   Jose Nunez-Hernandez,

                            Appellant
                 _______________

   On Appeal from the United States District Court
      for the Eastern District of Pennsylvania
                (D.C. No. 04-cr-00323)
     District Judge: Honorable Berle M. Schiller
                  _______________

     Submitted under Third Circuit LAR 34.1(a)
              on September 15, 2005

BEFORE: ROTH, MCKEE and FISHER, Circuit Judges

          (Opinion Filed March 30, 2006)
ROTH, Circuit Judge:

            This case is an appeal from the District Court’s judgment of conviction and

sentence. For the reasons given below, we will affirm the conviction and sentence.

I.          Factual Background and Procedural History

            As the facts are well known to the parties, we give only a brief description of the

issues and procedural posture of the case.

            On June 3, 2004, the defendant, Jose Nunez-Hernandez, was charged with

reentering the United States after deportation without obtaining prior approval from the

Attorney General. 8 U.S.C.§ 1326(a) provides for up to two years imprisonment for

anyone who reenters the United States after being deported. 8 U.S.C.§ 1326(b)(2)

provides for up to twenty years imprisonment if the removal was subsequent to a

conviction for an aggravated felony. Notice of prior conviction was attached to the

indictment stating that the defendant had previously been convicted twice of aggravated

felonies as defined by 8 U.S.C. § 1101(a)(43)(B). On July 12, 2004, Hernandez entered

an open plea of guilty to the indictment while not admitting to the prior convictions.*

            The Presentence Investigation Report (PSR) calculated a total offense level of 21,

based in large part on the fact that the defendant was deported after being convicted of

felony drug trafficking. The PSR calculated a criminal history of IV based on three prior




     *
         The District Court did not treat the prior convictions as an element of the offense.

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convictions. The Sentencing Guidelines range for an offense level of 21 and a criminal

history category of IV is 57 to 71 months. Hernandez objected to the PSR’s enhancement

of the total offense level as well as the calculation of his criminal history based on the use

of his prior criminal convictions.

       The District Court ruled that Hernandez’s prior convictions for aggravated

felonies could be taken into account under 8 U.S.C.§ 1326(b)(2) without a jury finding

pursuant to the Supreme Court’s decision in United States v. Almendarez-Torres, 523

U.S. 224 (1998). The District Court determined that Hernandez had been deported

following a conviction for an aggravated felony. Therefore, the statutory maximum

penalty for the offense was raised from two to twenty years pursuant to 8 U.S.C. §

1326(b)(2).

       Next, the District Court accurately predicted the Supreme Court’s two holdings in

United States v. Booker, 125 S. Ct. 738 (2005) where the Court held that the Sentencing

Guidelines were unconstitutional as applied and thus are merely advisory. Having ruled

that the Guidelines were advisory, the District Court sentenced Hernandez to a 57-month

term of imprisonment, a $100 special assessment, and a three-year period of supervised

release. The 57-month term represented the minimum term of incarceration according to

the Guidelines range. This appeal followed.

II.    Jurisdiction and Standard of Review

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 because the



                                              3
indictment charged an offense against the laws of the United States. We have jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

III.   Discussion

       Hernandez makes two related challenges to his sentence. First, he questions the

continued validity of Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S.

466 (2000) and the line of related cases. See Blakely v. Washington, 542 U.S. 296

(2004); Booker, 125 S. Ct. 738. In Apprendi, the Supreme Court held that a jury

determination must be made for facts that subject a defendant to a greater maximum

sentence. Id. Here, Hernandez was subject to twenty years imprisonment under 8

U.S.C.§ 1326(b)(2) rather than two years pursuant to 8 U.S.C. § 1326(a) based on his

prior convictions, which during his plea he never admitted occurred. Hernandez contends

that the judge’s factual determination that Hernandez had previously committed an

aggravated felony resulting in deportation was unconstitutional.

       Hernandez’s argument fails because Apprendi explicitly declined to overrule

Almendarez-Torres. Id. at 489-90. Moreover, this Court has rejected defendant’s

argument notwithstanding the Apprendi line of cases. See United States v. Ordaz, 398

F.3d 236, 241 (3d Cir. 2005) (noting that the decision in Almendarez-Torres still stands

despite Blakely and Booker because “as an inferior federal court we have the

responsibility to follow directly applicable Supreme Court decisions.”).




                                             4
          Second, Hernandez makes another challenge ** based on Booker’s remedy holding.

In Booker, the Supreme Court held that the Sentencing Guidelines, in order to pass

constitutional muster, cannot be treated as mandatory. Here, the District Court treated the

Sentencing Guidelines as advisory. Nonetheless, Hernandez claims that his sentence

should be vacated and remanded on the ground that the District Court did not consider

any of the more generic sentencing factors in 18 U.S.C. § 3553(a) as required by Booker.

125 S. Ct. at 764 (“Without the ‘mandatory’ provision, the Act nonetheless requires

judges to take account of the Guidelines together with other sentencing goals.”); United

States v. Crosby, 397 F.3d 103, 115 (2d Cir. 2005) (holding that a “sentencing judge

would commit a statutory error . . . if the judge failed to ‘consider’ the applicable

Guidelines range . . . as well as the other factors listed in section 3553(a)”). Hernandez

claims that the District Court’s failure to consider the other factors in open court

constitutes error. 18 U.S.C. § 3553(c) (“The court, at the time of sentencing, shall state in

open court the reasons for its imposition of the particular sentence.”).

          Hernandez’s claim fails for three reasons. First, post-Booker we do not expect the

District Court in every case to conduct an accounting of each 3553(a) factor and note how

each influenced the sentencing decision. United States v Robles, 408 F.3d 1324, 1328

(11th Cir. 2005). Second, the record demonstrates that the District Court considered

Hernandez’s background, family circumstances, criminal history, and reasons for



   **
        This argument was not presented to the District Court.

                                               5
reentering the United States. There is no reason to think that these factors were not

considered in light of the sentencing goals of 18 U.S.C. § 3553(a). Finally, Hernandez

fails to demonstrate plain error by the District Court. United States v. Davis, 407 F.3d

162, 164-5 (3d Cir. 2005) (using the plain error analysis where the defendant did not raise

the Booker issue before the District Court). Moreover, prejudice cannot be presumed

since the District Court applied the Sentencing Guidelines in an advisory fashion. Id.

IV.    Conclusion

       For the reasons explained above, we will affirm the judgment of conviction and

sentence.




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