                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT                          FILED
                          ________________________
                                                                   U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                 No. 04-13982
                                                                         JUNE 10, 2005
                             Non-Argument Calendar                    THOMAS K. KAHN
                           ________________________                        CLERK

                       D.C. Docket No. 04-60069-CR-KAM

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

      versus

SAMUEL MORENO HURTADO,

                                                     Defendant-Appellant.

                          __________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         _________________________
                                 (June 10, 2005)


Before DUBINA, BLACK and PRYOR, Circuit Judges.

PER CURIAM:

      Appellant Samuel Moreno Hurtado appeals his 46-month sentence imposed

after pleading guilty to one count of illegal reentry of a previously deported alien,
in violation of 8 U.S.C. §§ 1326(a). The district court enhanced Hurtado’s

sentence pursuant to U.S.S.G. § 2L1.2(b)(1)(A) based on prior felony convictions

for drug trafficking offenses for which the sentence imposed exceeded 13 months.

      On appeal, Hurtado argues that, in light of Blakely v. Washington, 542 U.S.

__, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the district court violated his Fifth

and Sixth Amendment rights in enhancing his sentence based on the fact of

Hurtado’s prior felony convictions for drug trafficking offenses for which the

sentence imposed exceeded 13 months, where that fact was found by the district

court and not charged in the indictment, proved to a jury beyond a reasonable

doubt, or expressly admitted by Hurtado. Hurtado concedes that he admitted the

fact of his two convictions for drug trafficking offenses during his plea colloquy

but contends that he did not admit to the fact that the convictions were for

“felonies” or that the sentence imposed exceeded 13 months. Hurtado also argues

that this Court’s decision in United States v. Marseille, 377 F.3d 1249 (11th Cir.

2004), which held that Blakely did not take findings of prior convictions out of the

hands of the courts, was distinguishable in that Hurtado’s prior convictions had

not been charged in his indictment, in violation of his Fifth Amendment rights.

Hurtado further argues that the Supreme Court’s decision in Almendarez-Torres v.

United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed 2d 350 (1998), should not

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apply here because it has been “gravely wounded” by subsequent decisions and

has been applied only to situations where only the fact of a prior conviction is at

issue, not to situations where additional facts, such as whether the conviction

resulted in a sentence which exceeded 13 months, are at issue. Hurtado also filed

two letters of supplemental authority pursuant to Fed.R.App.P. 28(j). In the first

letter, Hurtado cites to United States v. Booker, 543 U.S. __, 125 S.Ct. 738, 160

L.Ed.2d 621 (2005), and argues that the district court erred by applying the

guidelines in a mandatory fashion. In the second letter, Hurtado cites to Shepard

v. United States, __ U.S. __, 125 S.Ct. 1254, __ L.Ed.2d __ (2005), and argues

that the district court erred under Shepard in determining facts “about a prior

conviction,” as opposed to a “fact of a prior conviction.”

      We review a defendant’s preserved constitutional challenges to his sentence

de novo but will reverse and remand only for harmful error. See United States v.

Paz, ___ F.3d ___, No. 04-14829 (11th Cir. Apr. 5, 2005) (holding that this Court

reviews a Booker issue de novo where the defendant objected in the district court

to sentence enhancements based on facts not found by a jury nor admitted by the

defendant). We further explained in Paz as follows:

      A constitutional error, such as a Booker error, must be disregarded as not
      affecting substantial rights, if the error is harmless beyond a reasonable
      doubt. This standard is only met where it is clear beyond a reasonable

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      doubt that the error complained of did not contribute to the sentence
      obtained. The burden is on the government to show that the error did not
      affect the defendant’s substantial rights.

Paz, ___ F.3d at ___ (internal quotations and marks omitted and citations

omitted).

      U.S.S.G. § 2L1.2(b)(1)(A) provides for a 16-level increase to a defendant’s

base offense level if the defendant was previously deported or unlawfully

remained in the United States after a conviction for a felony that is a drug

trafficking offense for which the sentence imposed exceeded 13 months. U.S.S.G.

§ 2L1.2(b)(1)(A).

      “In Almendarez-Torres v. United States, the Supreme Court held that the

government need not allege in its indictment and need not prove beyond a

reasonable doubt that a defendant had prior convictions for a district court to use

those convictions for purposes of enhancing a sentence.” United States v.

Marseille, 377 F.3d at 1257.

      In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63,

147 L.Ed.2d 435 (2000) (emphasis added), the Supreme Court declined to revisit

Almendarez-Torres and held that “[o]ther than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

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      In Marseille, we refused to interpret the Supreme Court’s rationale in

Apprendi as overruling the prior Supreme Court decision in Almendarez-Torres.

377 F.3d at 1257. We further concluded that Blakely “does not take such

fact-finding out of the hands of the courts.” Id. at 1257-58 n.14; see also United

States v. Guadamuz-Solis, 232 F.3d 1363 (11th Cir. 2000) (holding that

Almendarez-Torres remains the law after Apprendi).

      In Booker, the Supreme Court concluded that its holding in Blakely applied

to the Federal Sentencing Guidelines, and it reaffirmed its holding in Apprendi:

“Any fact (other than a prior conviction) which is necessary to support a sentence

exceeding the maximum 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.” 543 U.S. at ___, 125 S.Ct. at 756.

      We have recently clarified that the Supreme Court’s decision in

Almendarez-Torres “was left undisturbed by Apprendi, Blakely, and Booker.”

United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005). We noted that

while recent decisions, including Shepard, may arguably cast doubt on the future

prospects of Almendarez-Torres, the Supreme Court has not explicitly overruled

Almendarez-Torres and, as a result, we must follow Almendarez-Torres. United

States v. Camacho-Ibarquen, ___ F.3d ___, No. 04-11155, (11th Cir. Mar. 30,

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2005). In Camacho-Ibarquen, we further held that a defendant’s Sixth

Amendment rights are not violated when his sentence is enhanced under

§ 2L1.2(b)(1)(A) based on a prior conviction. Camacho-Ibarquen, ___ F.3d at

___; see also United States v. Orduno-Mireles, ___ F.3d ___, No. 04-12630 (11th

Cir. Apr. 6, 2005) (same).

      However, a district court commits Booker error, even in the absence of a

Sixth Amendment enhancement violation, when it misapplies the guidelines by

considering them as binding as opposed to advisory. Orduno-Mireles, ___ F.3d at

___ (citing to Shelton, 400 F.3d at 1330-31).

      Because the rules announced in Apprendi, Blakely, and Booker, by their

express terms, do not apply to the fact of “a prior conviction,” we conclude that

the Booker holding, by implication, does not require that prior convictions be

charged in the indictment, found by the jury beyond a reasonable doubt or

admitted by the defendant. Moreover, in Marseille, we noted that until the

Supreme Court holds otherwise, Almendarez-Torres remains good law. Marseille,

377 F.3d at 1257. The Supreme Court decisions in Apprendi, Blakely, and Booker

have not overruled its holding in Almendarez-Torres that prior convictions may be

considered in enhancing sentences. See Shelton, 400 F.3d at 1329. Thus, after

Booker, a judge still is able to impose enhancements on the basis of a defendant’s

                                         6
prior convictions, and there is no Sixth Amendment violation. See

Camacho-Ibarquen, ___ F.3d at ___.

        Even so, Hurtado argues that the district court’s enhancement of his

sentence under § 2L1.2 involved more than a mere finding of the fact of a prior

conviction. Rather, Hurtado asserts that the enhancement involved a further

determination as to whether his prior convictions were felony convictions for

which the sentence imposed exceeded 13 months. In Marseille, we reviewed a

similar argument that the district court improperly enhanced the defendant’s

sentence under 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4, based on his four prior

convictions for violent and drug-related felonies that were not alleged in the

indictment, and refused to interpret the Supreme Court’s rationale in Apprendi as

overruling the prior Supreme Court decision in Almendarez-Torres. 377 F.3d at

1257. Thus, we explicitly considered a similar argument and rejected it,

concluding that Blakely “does not take such fact-finding out of the hands of the

courts.” Id. at 1257-58 n. 14. To the extent there is such a distinction, Hurtado

did not object to the PSI’s description of the relevant prior convictions, and, thus,

this fact is deemed “admitted” for Booker purposes. See Shelton, 400 F.3d at

1330.




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      Further, Hurtado’s argument that Shepard draws a distinction, for Sixth

Amendment purposes, between the “fact of a prior conviction” and a “fact about a

prior conviction” is without merit. The portion of the decision containing that

language is from the plurality portion of the opinion; because Justice Thomas

dissented from that portion of the opinion, it is not part of the majority opinion and

is, therefore, not binding. See Shepard, __ U.S. at __, 125 S.Ct. at 1262-63. Thus,

while Shepard arguably casts doubt on the future prospects of

Almendarez-Torres, the Supreme Court has not explicitly overruled

Almendarez-Torres and, as a result, we must follow Almendarez-Torres. See

Camacho-Ibarquen, ___ F.3d at ___.

      We, therefore, conclude that the district court did not violate Hurtado’s

Sixth Amendment rights. However, the record demonstrates that the district court

specifically stated that it was “obligated to apply the guideline and the 16-level

enhancement in this case.” The district court, then, sentenced Hurtado under a

mandatory guidelines scheme, and, therefore, we conclude that the court

committed Booker statutory error. See Orduno-Mireles, ___ F.3d at ___ (citing to

Shelton, 400 F.3d at 1330-31).

      We, then, must determine whether this Booker error was harmless beyond a

reasonable doubt. See Paz, ___ F.3d at ___. The government has not made such a

                                          8
showing. Rather, the government argues only that there was no error under United

States v. Reese, 382 F.3d 1308 (11th Cir. 2004), and Almendarez-Torres.

      Looking to the record, it is not clear beyond a reasonable doubt that the

error was harmless. See Paz, ___ F.3d at ___. The district court overruled

Hurtado’s Blakely objection to the enhancement, finding that Almendarez-Torres

was still the law of this circuit and that it was “obligated” to apply the guidelines.

There is no indication from the sentencing court that it would have imposed the

same sentence had it used the guidelines in an advisory fashion. Rather, in

sentencing Hurtado at the lowest end of the guidelines and noting that it was

obligated to apply the guidelines, the court implicitly indicated that it may have

sentenced differently had it used the guidelines in an advisory fashion. Because it

is not clear beyond a reasonable doubt that the error was harmless, Hurtado must

be resentenced under the advisory guidelines system. See Paz, ___ F.3d at ___.

On remand, the district court, “while not bound to apply the Guidelines, must

consult those Guidelines and take them into account when sentencing.” Booker,

543 U.S. at __, 125 S.Ct. at 767.

       In sum, we conclude that the district court did not violate Hurtado’s Sixth

Amendment rights in enhancing Hurtado’s sentence under § 2L1.2 because the

district court’s determination that Hurtado had prior convictions did not implicate

                                           9
Apprendi, Blakely, or Booker, and the determination, that his prior convictions

were for felonies that are drug trafficking offenses for which the sentence imposed

exceeded 13 months, has not been taken out of the hands of the courts. However,

because the district court sentenced Hurtado under a mandatory guidelines

scheme, the court committed Booker statutory error. Because it is not clear from

the record, beyond a reasonable doubt, that the error is harmless, Hurtado should

be resentenced under the advisory guidelines system. Accordingly, we vacate

Hurtado’s sentence and remand this case for resentencing consistent with this

opinion.

      VACATED AND REMANDED.




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