                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                    FILED
                         ________________________         U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                                March 20, 2006
                               No. 05-14281                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                      D. C. Docket No. 05-00033-CR-WS

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

ELISEO GOMEZ-MADRIGAL,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Alabama
                        _________________________

                               (March 20, 2006)

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     The one-count indictment in this case alleged that on January 14, 2005,
appellant, an alien who had previously been deported, was found to be unlawfully

and voluntarily in the United States at a Shell Chemical LP facility in Mobile

County, Alabama, in violation of 8 U.S.C. § 1326(a) and (b). Appellant pled guilty

to the charge on March 29, 2005, and the district court scheduled his sentencing for

July 22, 2005.

      The presentence investigation report (PSI) indicated that the applicable

Sentencing Guideline for the charged offense, U.S.S.C. § 2L1.2, fixed the base

offense level at eight. Prior to his previous deportation, appellant had been

convicted in a California court of an aggravated felony (he shot another person in

the abdomen with an assault rifle), so the PSI included a specific offense

characteristic, based on that conviction, that increased his base offense level by 16

levels. After giving appellant credit for acceptance of responsibility, the PSI set

appellant’s adjusted offense level at 21 and his criminal history category at II. This

yielded a sentence range of 41 to 51 months imprisonment. Appellant objected to

the 16-level enhancement, contending that because the fact of the California

conviction had not been alleged in the indictment, the enhancement was

unconstitutional. He readily acknowledged that the Supreme Court’s decision in

Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219 (1998),

effectively permitted the enhancement, but urged the court not to follow the



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decision because (in his attorney’s view) it is no longer good law. The court

overruled his objection and sentenced him to a prison term of 41 months. He now

appeals his conviction on the ground that the Sixth Amendment barred the court

from using his California conviction to enhance his base offense level because the

fact of the conviction had not been alleged in the indictment. He also contends that

the Sixth Amendment precluded the court from treating his California conviction

as a felony.

        In Almendarez-Torres, the Supreme Court specifically addressed whether

“[8 U.S.C. § 1326(b)] defines a separate crime or simply authorizes an enhanced

penalty. . . [and concluded] that the subsection is a penalty provision, which simply

authorizes a court to increase the sentence for a recidivist. It does not define a

separate crime.” Almendarez-Torres v. United States, 523 U.S. 224, 226, 118 S.Ct.

1219, 1222, 140 L.Ed.2d 350 (1998). The Court went on to hold that “neither the

statute nor the Constitution requires the Government to charge the factor that it

mentions, an earlier conviction, in the indictment.” Id. at 226-27, 118 S.Ct at

1222.

        We have held that Almendarez-Torres “was left undisturbed by Apprendi [v.

New Jersey, 530 U.S. 466, 489-90, 120 S.Ct. 2348, 2362-63 (2000)], Blakely[ v.

Washington], 542 U.S. 296, 303, 124 S.Ct. 2531, 2537 (2004)], and [United States



                                           3
v.] Booker[, 543 U.S. 220, 243-44, 125 S.Ct. 738, 755-756 (2005)].” United

States v. Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005). “Put another way,

because the prior-conviction exception remains undisturbed after Booker, a district

court does not err by relying on prior convictions to enhance a defendant’s

sentence.” United States v. Orduno-Mireles, 405 F.3d 960, 962 (11th Cir.), cert.

denied, 126 S.Ct. 223 (2005). Given this state of the law, we reject appellant’s

request that we vacate his sentence and remand the case for further proceedings

because the indictment did not allege the fact of his California conviction. We turn

then to his claim that the Sixth Amendment precluded the court from treating that

conviction as a felony.

      Appellant contends that that conviction was under a “wobbler” California

sentencing scheme which gives the prosecutor or the court the discretion to treat an

offense as either a felony or a misdemeanor. He submits that given the Supreme

Court’s decisions in Blakely and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428

(2002), the California scheme violates the Sixth and Fourteenth Amendment

guarantee of a jury trial as to the issues which make an offense a felony instead of

a misdemeanor. Consequently, the district court erred in considering his conviction

as a felony.

      Appellant did not present this argument to the district court at his sentencing



                                          4
hearing; thus, we examine the argument for plain error. United States v.

Candelario, 240 F.3d 1300, 1306 (11th Cir. 2001). We correct “plain error only

where (1) there is an error; (2) the error is plain or obvious; (3) the error affects the

defendant’s substantial rights . . . ; and (4) the error seriously affects the fairness,

integrity, or public reputation of a judicial proceeding.” Orduno-Mireles, 405 F.3d

at 961.

       In an attack on the constitutionality of a prior conviction the district court

used to increase a defendant’s sentence under the Armed Career Criminal Act, we

noted that:

       an analogous provision of the Sentencing Guidelines . . . does not
       authorize a sentencing court to inquire into the constitutional validity
       of a prior conviction, unless the defendant adduces evidence sufficient
       to demonstrate that the conviction used to enhance the sentence is
       presumptively void. . . .the court construed the language of the
       application note to signify that ‘courts can only exclude convictions
       that have already been ruled invalid.’

United States v. Owens, 15 F.3d 995, 999 (11th Cir. 1994)(citation omitted). We

went on to hold that because collateral review was available to the defendant to

challenge the constitutionality of his previous convictions, “the district court d[ed]

not have the discretion to entertain challenges to prior convictions at sentencing. . .

.” Id. at 1001-02.

       Turning to the bottom-line question of whether the district court committed



                                             5
plain error in this instance, we conclude that if the court committed error – and we

could hardly say that it did – the error was not plain, nor did it negatively affect

appellant’s substantial rights.

      Having reached the foregoing conclusions, we affirm the district court’s

judgment.

      SO ORDERED.




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