                                                      [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS
                                                              FILED
                   FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                     ________________________   ELEVENTH CIRCUIT
                                                      NOVEMBER 21, 2005
                            No. 04-16236               THOMAS K. KAHN
                       Non-Argument Calendar               CLERK
                      ________________________

                   D. C. Docket No. 95-08083-CR-JAG

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                                versus

JUSTINO SANTA,
a.k.a. Tino,

                                                Defendant-Appellant.


                      ________________________

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

                          (November 21, 2005)

Before DUBINA, HULL and FAY, Circuit Judges.

PER CURIAM:
      Justino Santa appeals his 420-month combined sentences, imposed after he

was convicted by a jury for (1) conspiracy to possess with intent to distribute

cocaine in violation of 21 U.S.C. § 846; (2) possession with intent to distribute

cocaine in violation of 21 U.S.C. § 841(1); (3) two counts of distributing crack

cocaine in violation of 21 U.S.C. § 841(a)(1); (4) carrying a firearm during and in

relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c); and (5)

being a convicted felon in possession of a firearm. He argues that the district court

violated his Fifth Amendment right to an indictment and Sixth Amendment right to

a jury trial by enhancing his sentence on the basis of a prior conviction not alleged

in the indictment or proven to a jury. For the reasons set forth more fully below,

we affirm.

      On June 9, 1997, a superseding indictment was filed charging Santa with the

nine counts of criminal activity mentioned above. As to the drug trafficking

counts, the indictment did not charge any specific quantities of drugs, nor did the

indictment allege any prior convictions other than one prior felony conviction to

support the felon in possession of a firearm charge. The government did, however,

file a 21 U.S.C. § 851 notice that it would seek an enhanced penalty because Santa

previously had been convicted of a felony drug offense. Santa pleaded not guilty

and proceeded to trial, where a jury found him guilty of all nine counts as charged



                                          2
in the indictment.

      At sentencing, the district court found that, notwithstanding Santa’s

objections, the drug offenses involved more than two kilograms of crack cocaine

and more than fifty kilograms of cocaine base. Thus, Santa’s guideline range, set

at criminal history category VI and offense level 42, was 360 months to life. The

court then imposed 360-month concurrent terms of imprisonment as to Counts 1-4

and 7-9. As to Count 5, a 60-month consecutive sentence was imposed, and, as to

Count 6, a 240-month consecutive sentence was imposed. In sum, on January 27,

1998, Santa was sentenced to a combined 660-month sentence for all Counts. We

affirmed his convictions and sentences on direct appeal.

      We later granted a certificate of appealability on Santa’s 28 U.S.C. § 2255

motion to vacate his sentence on the sole issue of whether Santa’s trial counsel was

ineffective for failing to challenge his convictions and sentences for violations of

18 U.S.C. § 924©) under the rule in United States v. Hamilton, 953 F.2d 1344

(11th Cir. 1992) that multiple sentences under § 924(c) must be for the number of

drug trafficking offenses during which guns were used, not the number of guns

used in a single offense. We ruled that Santa’s case was “indistinguishable” from

the case in Hamilton, and, therefore, held it was unreasonable for trial counsel not

to raise a Hamilton objection at trial or on direct appeal. Thus, Santa’s sentences



                                           3
were vacated and remanded for resentencing.

      A revised presentence investigation report (PSI) was completed prior to

Santa’s resentencing. The PSI set Santa’s base offense level at 38 after finding that

the amount of cocaine base involved was at least 1.5 kilograms or more. A four-

level enhancement was added because Santa had been described as the organizer

and leader of a cocaine organization. No further adjustments or reductions were

made, for a total offense level of 42. The PSI also noted that, because Santa had

two prior convictions for “crimes of violence” or “controlled substances,” he was

considered a career offender. Ordinarily, because the statutory maximum term of

imprisonment for Santa was life imprisonment, his career-offender offense level

would have been set at 37. However, because Santa’s adjusted offense level was

42, that offense level was used in place of the career offender adjustment. On the

basis of Santa’s career offender status, he was placed in criminal history category

VI.

      Ultimately, the PSI concluded that the guideline range for Counts 1-4 and

7-9 was 360 months to life, while both Counts 5 and 6 required mandatory

60-month consecutive sentences. Santa lodged two principal objections to the PSI

calculations, first arguing that his base offense level was based on an amount of

cocaine not charged in the indictment or made in a specific finding by the jury as



                                          4
required by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d

435 (2001). Second, he argued that the enhancement for being a leader or

organizer was not based on jury finding and was contrary to the rule of Blakely v.

Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Santa,

relying principally on Blakely and, more specifically, the dissenting opinions of

Justices O’Connor and Breyer in Blakely, argued that there was no meaningful

distinction between the Washington state sentencing scheme and the Federal

Guidelines, meaning that Blakely’s rule extended to render the Federal Guidelines

unconstitutional.

      The district court sustained Santa’s objections as to the role-enhancement

and the drug quantity, and found that Santa’s base offense level was only 17

which, at criminal history VI, provided for a sentencing range of 51 to 63 months’

imprisonment. (Id. at 9-10). However, the court noted that Apprendi and Blakely

had not changed the fact that prior convictions were not required to be presented to

a jury. Thus, the court found that the statutory maximum penalty for Santa was life

imprisonment, which, under U.S.S.G. § 4B1.1 and the relevant career offender

provisions, mandated a total offense level of 37, notwithstanding drug quantities.

At criminal history category VI, total offense level 37, Santa was still subject to a

prison term of 360 months to life. Count 6 was dismissed in light of Hamilton, and



                                           5
the court subsequently imposed 360-month concurrent sentences on Counts 1-4

and 7-9 and a 60-month consecutive sentence on Count 5, for a total sentence of

420 months’ imprisonment.

      The court then added for the record that it did not believe the Federal

Guidelines would be ruled unconstitutional but, in the event that they were, the

statutory maximum in Santa’s case would still be life imprisonment. It then said,

“if that were the case and that was to be the law, [and] the court would be required

to impose a sentence within the statutory guidelines set forth in the statute, [then]

the court would still impose a sentence [of] 360 months.” The court continued that

its pronouncement was “not binding,” but given as an “advisory matter” in case the

government believed that the sentence had been wrongly imposed. It even called

its statement “dicta.” Based on the court’s rulings, Santa’s counsel had no further

objections, although Santa himself argued that he should not receive the 60-month

consecutive sentence and further argued that he was actually innocent of Count 5.

No further objections were made.

      On appeal, Santa, while conceding that the Supreme Court’s precedent in

Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d

350 (1998) permitted the district court to use prior convictions not charged in the

indictment or proven to a jury to enhance his sentence, argues that the continued



                                           6
validity of Almendarez-Torres is in doubt and wishes to preserve the issue. Santa

focuses on Justice Thomas’s concurring opinion in the recently decided Shephard

v. United States, ___ U.S. ___, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), in which

Thomas noted that a majority of the Supreme Court now recognizes that

Almendarez-Torres was wrongly decided. Thus, Santa argues that Almendarez-

Torres and Apprendi cannot be reconciled and Almendarez-Torres is due to be

overruled. Nowhere in his brief does Santa argue that the district court erred by

sentencing him under a mandatory guidelines regime.

      As Santa concedes, he did not raise a constitutional objection regarding the

use of prior convictions, but rather, limited his objections to the use of uncharged

drug quantities and the role enhancement. Santa never mentioned prior

convictions, either in his memorandum or at sentencing. While his Blakely

objections were sustained as to drug quantity and the role enhancement, Santa did

not object when the district court, after noting that Blakely did not apply to the use

of prior convictions, used Santa’s prior convictions to enhance his sentence based

on the career offender provisions of the guidelines. In light of the foregoing, it

appears that no timely constitutional objection was made to the use of prior

convictions to enhance Santa’s sentence. Cf. United States v. Dowling, 403 F.3d

1242, 1245 (11th Cir.) cert. denied ___ S.Ct. ___ (U.S. Oct. 11, 2005) (No. 05-



                                           7
6234 ) (discussing how to preserve a Booker error and holding that a defendant

must raise Apprendi (or, presumably, Blakely or Booker) or otherwise base an

objection on the fact that the jury did not find the drug quantity and type beyond a

reasonable doubt).

       Because Santa did not lodge a constitutional objection to the use of his prior

convictions at sentencing in district court, we will review only for plain error.

United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.) cert. denied 125 S.Ct.

2935 (2005) (“[b]ecause Rodriguez did not object on this basis in the district court,

our review is only for plain error.”). “An appellate court may not correct an error

the defendant failed to raise in the district court unless there is: (1) error, (2) that is

plain, and (3) that affects substantial rights.” Id. (quotation and citation omitted).

“If all three conditions are met, an appellate court may then exercise its discretion

to notice a forfeited error, but only if (4) the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id.

       After Santa had been resentenced, the Supreme Court held that the

mandatory nature of the Federal Guidelines rendered them incompatible with the

Sixth Amendment’s guarantee of a right to a jury trial. Booker, 543 U.S. at

___,125 S.Ct. at 749-51. In so doing, the Court affirmed its holding in Apprendi:

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



                                             8
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, 543 U.S at ___, 125 S.Ct. at 756.

      Prior to Booker, we had held that nothing in Blakely prevented a district

court from enhancing a defendant’s sentence based on prior convictions. See

United States v. Marseille, 377 F.3d 1249, 1257 n.14 (11th Cir. 2004).

Post-Booker, we have likewise held that nothing in Booker disturbed the Supreme

Court’s holdings in Almendarez-Torres or Apprendi, and that a district court,

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

sentence. See United States v. Orduno-Mireles, 405 F.3d 960, 962-63 (11th Cir.),

cert. denied, ___ S.Ct. ___ (U.S. Oct. 3, 2005) (No. 05-5141); see also United

States v. Gallegos-Aguero, 409 F.3d 1274, 1276-77 (11th Cir. 2005); United States

v. Camacho-Ibarquen, 410 F.3d 1307, 1315-16 (11th Cir.), cert. denied, ___ S.Ct.

___ (U.S. Oct. 11, 2005) (No. 05-6178). Santa argues that the Supreme Court’s

recent decision or, more specifically, Justice Thomas’s concurrence in Shepard v.

United States, casts doubt on the continuing validity of Almendarez-Torres as

precedent, and we have recognized that Almendarez-Torres could, because of cases

like Shepard, arguably be overruled. Camacho-Ibarquen, 410 F.3d at 1316 n.3.

Until the Supreme Court explicitly does so, however, we have held that we will



                                          9
follow Almendarez-Torres as precedent. Id. Accordingly, Santa’s argument lacks

merit.1

       Secondly, even assuming that a constitutional error was possible, there was

no error in this case because Santa admitted to the prior conviction used to enhance

his sentence by not objecting to the conviction in the PSI. We have held that

where a defendant does not object to the factual findings of the PSI, they are

deemed admitted, and a district court does not violate the Sixth Amendment by

relying on those facts. United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir.

2005). Thus, no constitutional violation could have occurred.

       Notwithstanding the fact that there was no constitutional error, we have

recognized a second, statutory error that occurs when the district court applies the

guidelines in a binding, as opposed to advisory, fashion. See, e.g., United States v.

Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005) (holding that “[t]he statutory error

occurs when the district court sentences a defendant ‘under a mandatory

[g]uidelines scheme, even in the absence of a Sixth Amendment enhancement

violation.”).

       First, it is noted that Santa does not raise the issue of statutory error in his



       1
        To the extent Santa desires that this Court revisit its decision, “[t]he law of this circuit is
‘emphatic’ that only the Supreme Court or this court sitting en banc can judicially overrule a prior
panel decision.” Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir. 1997).

                                                  10
brief and, to the extent he failed to do so, we deem the issue abandoned. See, e.g.,

United States v. Magluta, 418 F.3d 1166, 1185-86 (11th Cir. 2005) (holding that a

defendant who argues, for the first time in his reply brief, and not his initial brief,

that he is entitled to resentencing because the district court sentenced him under

mandatory guidelines, abandons the argument). However, even if we were to

consider the argument, Santa would not be entitled to resentencing. As we noted in

Magluta, in order for a defendant to satisfy the substantial prejudice test under

plain error review, he must “establish a reasonable probability that if the district

court had considered the guidelines range it arrived at using extra-verdict

enhancements as merely advisory, instead of mandatory, and had taken into

account any otherwise unconsidered [18 U.S.C.] § 3553 factors, the court would

have imposed a lesser sentence than it did.” Id. at 1186 (citation omitted). Here,

the district court, albeit in dicta, indicated that, in the event the guidelines were

declared unconstitutional, it would impose a sentence of 360 months’

imprisonment with a 60-month consecutive sentence. It found that the total 420-

month sentence was appropriate for the offenses of conviction. Accordingly, Santa

cannot show that he would have received a lesser sentence, and cannot satisfy plain

error review.

      Lastly, to the extent Santa argues that his prior convictions should have been



                                            11
charged in the indictment, neither Blakely nor Booker held that the use of

mandatory guidelines implicated the Fifth Amendment’s right to an indictment.

Furthermore, we have held that, post-Booker, the only statutory maximum is that

set out in the United States Code. United States v. Duncan, 400 F.3d 1297,

1303-04 (11th Cir.) cert. denied ___ S.Ct. ___ (U.S. Oct. 11, 2005) (05-5467).

Because Santa violated 21 U.S.C. § 841(a)(1), and the government provided its

notice, under 21 U.S.C. § 851, that it would be seeking an enhanced penalty due to

Santa’s prior felony drug convictions, Santa was on notice that he could face a

statutory maximum of life imprisonment under 21 U.S.C. § 841(b)(1)(A).

      Based on the foregoing, we conclude that the district court did not violate

Santa’s Fifth or Sixth Amendment rights when it resentenced him to a 420-month

combined sentence. We, therefore, affirm.

      AFFIRMED.




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