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


11-22-2006

USA v. Jimenez-Cohenete
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4473




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                                                NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 ____________

                      No. 05-4473
                     ____________

           UNITED STATES OF AMERICA

                            v.

           VICTOR JIMENEZ-COHENETE,
               a/k/a Hermes Crisostomo

                           Appellant
                     ____________

     On Appeal from the United States District Court
         for the Eastern District of Pennsylvania
                 (D.C. No. 04-cr-00098)
     District Judge: Honorable Eduardo C. Robreno
                      ____________

       Submitted Under Third Circuit LAR 34.1(a)
                  September 25, 2006

Before: RENDELL, CHAGARES and ROTH, Circuit Judges.

               (Filed November 22, 2006)

                     ____________

              OPINION OF THE COURT
                   ____________
CHAGARES, Circuit Judge.

       On February 26, 2004, Victor Jimenez-Cohenete was charged with violating 8

U.S.C. § 1326(a) and (b)(2) (reentry by an alien after deportation). Attached to the

indictment was a notice of prior conviction of three counts of felony aggravated assault,

which are aggravated felonies as that term is defined and used in 8 U.S.C. §§ 1101(a)(43)

and 1326(b)(2). Jimenez-Cohenete pleaded guilty before the District Court. On August

6, 2004, Jimenez-Cohenete was sentenced by the District Court to 46 months

incarceration, three years supervised release, and a special assessment of $100. On

appeal, this Court vacated the sentence and remanded for resentencing under United

States v. Booker, 543 U.S. 220 (2005). On September 13, 2006, the District Court held a

resentencing hearing and imposed the same sentence as before.

       Section 1326(b)(2) increases the authorized prison sentence from a maximum of

two years to a maximum of twenty years if the person’s deportation followed conviction

for an aggravated felony. Jimenez-Cohenete argues that, because his prior felony

convictions increased the statutory maximum penalty for his reentry offense, those

offenses should have been charged in the indictment and proven to a jury beyond a

reasonable doubt. He contends that the Government’s failure to do so violated the Fifth

and Sixth Amendments. Put another way, Jimenez-Cohenete challenges the vitality of

Almendarez-Torres v. United States, 523 U.S. 224, 226 (1998) (holding that facts

regarding prior convictions need not be charged in an indictment, nor proven to a jury



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beyond a reasonable doubt), in light of subsequent Supreme Court decisions in Apprendi

v. New Jersey, 530 U.S. 466 (2000), and Booker.

       Jimenez-Cohenete’s challenge, as he acknowledges, is precluded by United States

v. Ordaz, 398 F.3d 236 (3d Cir. 2005). In Ordaz, we recognized the “tension between the

spirit of Blakely and Booker that all facts that increase the sentence should be found by a

jury and the Court’s decision in Almendarez-Torres.” Id. at 241. Nonetheless, bound by

Almendarez-Torres, we held that a District Court’s determination regarding the fact of a

defendant’s prior conviction did not violate the Fifth and Sixth Amendments. See id.

       Jimenez-Cohenete suggests that the Supreme Court’s decision in Shepard v.

United States, 544 U.S. 13, 25-26 (2005) (holding that a sentencing court, in determining

whether a burglary was a “violent felony” that resulted in an enhanced statutory

minimum, had to rely on charging documents, elements of offenses, plea colloquies, and

express findings by the trial judge, and could not look to police reports or complaint

applications), decided two weeks after Ordaz, supports limiting Almendarez-Torres. This

argument, too, is precluded by a prior decision of this Court. See United States v.

Coleman, 451 F.3d 154, 160 (3d. Cir. 2006) (holding that Shepard did not affect the

continuing validity of Almendarez-Torres).

       Almandarez-Torres is the law of the land until the United States Supreme Court

holds otherwise. Ordaz, 398 F.3d at 241. Accordingly, we will affirm the judgment of

the District Court.




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