USA v. Alvaro Delgado-Aguilar

Filing 920060620

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT No. 05-14187 Non-Argument Calendar ________________________ D. C. Docket No. 04-00050-CR-1-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ALVARO DELGADO-AGUILAR, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Northern District of Georgia _________________________ (June 20, 2006) Before ANDERSON, BIRCH and WILSON, Circuit Judges. PER CURIAM: Alvaro Delgado-Aguilar, who pled guilty to illegally reentering the United States in violation of 8 U.S.C. § 1326(a) and (b)(2), appeals his 41-month sentence. He contends that, because the characterization of his prior conviction for
JUNE 20, 2006 THOMAS K. KAHN CLERK FILED

aggravated assault as a "crime of violence" was not charged in the indictment or proven to a jury, the 16-level sentencing enhancement applied by the district court pursuant to United States Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii) violates United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). Although we review Delgado-Aguilar's constitutional objection de novo, and will reverse only for harmful error, see United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005) (per curiam), his argument is clearly foreclosed by our circuit precedent interpreting Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Apprendi's progeny. See, e.g., United States v. Orduno-Mireles, 405 F.3d 960, 962-63 (11th Cir.) (Booker did not disturb Almendarez-Torres's holding that "recidivism is not a separate element of an offense that the government is required to prove beyond a reasonable doubt."), cert. denied, __ U.S. __, 126 S. Ct. 223, 163 L. Ed. 2d 191 (2005); United States v. Glover, 431 F.3d 744, 749 (11th Cir. 2005) (per curiam) ("[W]hether a previous conviction is a `crime of violence' is a question of law, not of fact . . . ."). Therefore, the district court did not violate Booker when it enhanced Delgado-Aguilar's sentence under the Sentencing Guidelines based on its finding that his prior conviction was for a "crime of violence." Even so, Delgado-Aguilar

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was sentenced under an advisory guidelines scheme, so the district court did not commit constitutional error in sentencing him. Thus, we affirm Delgado-Aguilar's sentence. AFFIRMED.

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