                                                          [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                              FILED
                     FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
                                              U.S.
                      ________________________ ELEVENTH CIRCUIT
                                                             May 20, 2005
                             No. 04-13829                 THOMAS K. KAHN
                                                              CLERK
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 03-60289-CR-KAM

UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee-
                                                      Cross-Appellant,

                                   versus

ALLAN CABRERA-RUIZ,
                                                      Defendant-Appellant-
                                                      Cross-Appellee.

                      __________________________

            Appeals from the United States District Court for the
                       Southern District of Florida
                      _________________________

                              (May 20, 2005)

Before ANDERSON, BLACK and MARCUS, Circuit Judges.

PER CURIAM:
      Allan Cabrera-Ruiz appeals his sentence for illegal reentry into the United

States, in violation of 8 U.S.C. § 1326(a) and (b)(2). Cabrera-Ruiz asserts the

district court erred in (1) enhancing his sentence based on facts not alleged in the

indictment or found by the jury, and (2) determining his state court conviction for

delivery of cannabis was an aggravated felony. The Government cross-appeals,

contending the district court erred in determining Cabrera-Ruiz’s prior drug

trafficking conviction was the only prior conviction that could be used to support a

sentencing enhancement under U.S.S.G. § 2L1.2(b)(1). We vacate and remand for

resentencing.

                                  I. DISCUSSION

A.    Enhancement Issues

      Cabrera-Ruiz asserts his Fifth and Sixth Amendment rights were violated,

pursuant to Blakely v. Washington, 124 S. Ct. 2531 (2004), when the district court

enhanced his sentence based on facts neither charged in the indictment nor found

by a jury beyond a reasonable doubt. Because Cabrera-Ruiz argued in his

objections to the PSI and at sentencing that the district court violated his Fifth and

Sixth Amendment rights under Blakely, he raised a timely constitutional objection

and is entitled to preserved error review. See United States v. Candelario, 240

F.3d 1300, 1306 (11th Cir. 2001). We review preserved constitutional errors de

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novo, but “will reverse only for harmful error.” See United States v. Sanchez, 269

F.3d 1250, 1272 (11th Cir. 2001) (en banc).

      1.     Statutory Enhancement

      8 U.S.C. § 1326(b)(2) provides for a maximum sentence of 20 years’

imprisonment for illegal reentry if a defendant was deported subsequent to being

convicted of an aggravated felony. On the other hand, a defendant who was not

deported subsequent to being convicted of an aggravated felony, and who does not

satisfy any of the other requirements justifying an enhanced penalty under

§ 1326(b), is subject to a maximum of two years’ imprisonment. 8 U.S.C.

§ 1326(a). Cabrera-Ruiz argues his prior aggravated felony conviction, which

subjected him to the enhanced sentence of 8 U.S.C. § 1326(b)(2), was neither

alleged in the indictment nor proven to a jury beyond a reasonable doubt, thus

violating the Fifth and Sixth Amendments.

      The Supreme Court determined an indictment in an illegal reentry case does

not have to allege a defendant’s prior aggravated felony conviction for a court to

impose an enhanced sentence under § 1326(b). Almendarez-Torres v. United

States, 118 S. Ct. 1219, 1232–33 (1998). Here, the indictment charged Cabrera-

Ruiz with illegal reentry after deportation, without alleging the fact he previously




                                          3
had been deported following a conviction for an aggravated felony.1 However, the

indictment does not have to allege a defendant’s prior aggravated-felony

conviction for a court to impose an enhanced sentence under § 1326(b)(2). See id.

Accordingly, the district court did not err when it imposed a statutory sentence

above the two-year statutory maximum sentence for § 1326(a) offenses.

       2.      Guidelines Enhancement

       Further, Cabrera-Ruiz claims the court violated his constitutional rights by

sentencing him under U.S.S.G. § 2L1.2(b)(1)(B) because the conviction the court

relied on in imposing this enhancement was neither alleged in the indictment nor

proven beyond a reasonable doubt. U.S.S.G. § 2L1.2(b)(1)(B) provides “[i]f the

defendant previously was deported, or unlawfully remained in the United States

after—a conviction for a felony drug trafficking offense for which the sentence

imposed was 13 months or less,” the base offense level is increased 12 levels.

       Subsequent to the parties filing their briefs in this appeal, the Supreme

Court concluded its holding in Blakely applied to the Federal Sentencing

Guidelines. United States v. Booker, 125 S. Ct. 738, 755 (2005). In discussing

this holding, however, the Court reaffirmed its holding in Apprendi v. New Jersey,



       1
          The indictment, however, did allege that Cabrera-Ruiz’s reentry following deportation was
in violation of 8 U.S.C. § 1326(a) and (b)(2).

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120 S. Ct. 2348 (2000), that “[a]ny 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.” Booker, 125 S. Ct. at 756.

      Accordingly, insofar as the district court’s enhancement of Cabrera-Ruiz’s

sentence under § 2L1.2(b)(1)(B) merely involved a determination that Cabrera-

Ruiz had prior convictions, the enhancement did not implicate Apprendi, Blakely,

or Booker, as those cases exempt prior convictions from the types of facts that

must be admitted by the defendant or proved to a jury beyond a reasonable doubt

in order to support a sentence enhancement.

      There is a potential Booker error in this case, however, because the district

court sentenced Cabrera-Ruiz under a mandatory Guidelines system. See United

States v. Shelton, 400 F.3d 1325, 1330–31 (2005) (“[T]he Supreme Court has now

excised the mandatory nature of the Guidelines in Booker. Thus, we conclude it

was Booker error for the district court to sentence Shelton under a mandatory

Guidelines scheme, even in the absence of a Sixth Amendment enhancement

violation.”). Because this case is being vacated and remanded for resentencing on

another issue, however, we do not address this issue.




                                          5
B.    Aggravated Felony

      Cabrera-Ruiz next contends the district court erred in determining his

conviction for delivery of cannabis was an aggravated felony. We review de novo

the district court’s interpretation of the Sentencing Guidelines. United States v.

Simon, 168 F.3d 1271, 1272 (11th Cir. 1999).

      A defendant who was removed subsequent to a conviction for an aggravated

felony is subject to a 20-year statutory maximum sentence. 8 U.S.C. § 1326(b)(2).

The Code states an aggravated felony means “illicit trafficking in a controlled

substance.” 8 U.S.C. § 1101(a)(43)(B). We have stated a state felony drug

offense could qualify as an aggravated felony even though that same offense

would not be a felony under the federal drug statutes. Simon, 168 F.3d at 1272.

The Florida Supreme Court has stated delivery of cannabis is a third degree felony

under Florida law. See Parker v. Florida, 406 So. 2d 1089, 1091 (Fla. 1981).

      Cabrera-Ruiz was convicted of a state court drug trafficking felony, delivery

of cannabis, and that conviction can qualify as an aggravated felony even though it

is not an aggravated felony under federal law. See Simon, 168 F.3d at 1272;

Parker, 406 So. 2d at 1091. Accordingly, the district court did not err in

determining his conviction was an aggravated felony for purposes of 8 U.S.C.

§ 1326(b)(2).

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C.     Government’s Cross Appeal

       The Government contends the district court erred in determining the

conviction used to support the application of 8 U.S.C. § 1326(b)(2) was the only

prior conviction that could be used to support an enhancement under U.S.S.G.

§ 2L1.2(b). Section 1326(b)(2) provides an alien whose removal was subsequent

to a conviction for an aggravated felony shall not be imprisoned for more than 20

years. Under the Immigration and Nationality Act, the term “aggravated felony”

includes, in relevant part, a drug trafficking offense, or a crime of violence for

which the term of imprisonment was at least one year. 8 U.S.C. § 1101(a)(43)(B),

(F).

       The Sentencing Guidelines provide for a base offense level of 8 for a

conviction under § 1326(a). U.S.S.G. § 2L1.2(a). The Guidelines further provide

if the defendant was previously deported after a conviction for a felony that is “a

drug trafficking offense for which the sentence imposed exceeded 13 months,” or

“a crime of violence,” the offense level should be increased by 16 levels, and “a

conviction for a felony drug trafficking offense for which the sentence imposed

was 13 months or less,” the offense level should be increased by 12 levels.

U.S.S.G. § 2L1.2(b)(1)(A)(i), (ii), (B). The Application Notes define a crime of

violence, in relevant part, as aggravated assault, and define a drug trafficking

                                           7
offense as “an offense under federal, state, or local law that prohibits the

manufacture, import, export, distribution, or dispensing of a controlled substance.”

U.S.S.G. § 2L1.2, comment. (n.1(B)(iii),(iv)).

      As discussed above, Cabrera-Ruiz’s conviction for delivery of cannabis is

an aggravated felony for purposes of establishing § 1326(b)(2). See 8 U.S.C.

§ 1101(a)(43)(B). Cabrera-Ruiz’s conviction for aggravated battery is not an

aggravated felony, for purposes of § 1326(b)(2), as he only served a nine-month

sentence which did not meet the one year requirement of § 1101(a)(43)(F). Thus,

Cabrera-Ruiz’s conviction for delivery of cannabis is the only conviction that

invokes the § 1326(b)(2) statutory maximum of 20 years. See 8 U.S.C.

§ 1101(a)(43)(F).

      Under the Guidelines, the delivery of cannabis conviction, for which

Cabrera-Ruiz received a four month sentence, does not meet the requirements for a

16-level increase, but does meet the requirements for a 12-level increase. See

U.S.S.G. § 2L1.2(b)(1)(A), (B). However, Cabrera-Ruiz’s conviction for

aggravated battery is a crime of violence, such that the 16-level increase would

apply. See U.S.S.G. § 2L1.2(b)(1)(A)(ii), comment. (n.1(B)(iii)).




                                          8
      The issue then becomes whether the conviction used to enhance a

defendant’s sentence under § 2L1.2(b)(1)(A) needs to be the same conviction that

invokes the penalty provision in § 1326(b)(2). We have held that:

      [Section] 2L1.2 is not dependent upon 8 U.S.C. § 1326 and that a
      previous offense may be an “aggravated felony” for the purpose of
      the 16-level enhancement in the guideline while not qualifying for the
      statutory enhancement at 8 U.S.C. § 1326(b)(2). . . . While we agree
      that there is a difference between the definitions of “aggravated
      felony,” that difference does not cause a conflict between the statute
      and the guideline or create an ambiguity as to what sentence applies
      to a conviction under 8 U.S.C. § 1326.

United States v. Lazo-Ortiz, 136 F.3d 1282, 1285 (11th Cir. 1998). Therefore,

Cabrera-Ruiz’s conviction for delivery of cannabis, a felony drug trafficking

crime, could be used to invoke the § 1326(b)(2) penalty provision, while his

conviction for aggravated battery, a crime of violence, could be used to enhance

his sentence by 16 levels under § 2L1.2(b)(1)(A)(ii). Accordingly, the district

court erred in concluding that Cabrera-Ruiz’s conviction for delivery of cannabis

was the only conviction that would determine the level of enhancement he would

receive under the Guidelines.

                                II. CONCLUSION

      The district court did not err in enhancing Cabrera-Ruiz’s sentence under

the statute or the Guidelines based on his past convictions. The district court also



                                          9
did not err in determining his state court conviction for delivery of cannabis was

an aggravated felony. The district court erred, however, in its application of

U.S.S.G. § 2L1.2(b) based on its belief the conviction used to support the

enhanced penalty provision under 8 U.S.C. § 1326(b)(2) was the only prior

conviction that could be used to support a sentencing enhancement under U.S.S.G.

§ 2L1.2(b). We thus vacate and remand for resentencing. On remand, the district

court should treat the Sentencing Guidelines as advisory as mandated by Booker.

      VACATED AND REMANDED.




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