U.S. v. Beng-Salazar, 04-50518.

• Decision Date: 06 July 2006
• Docket Number: No. 04-50518.,04-50518.
• Citation: 452 F.3d 1088
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesus Adrian BENG-SALAZAR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

452 F.3d 1088

UNITED STATES of America, Plaintiff-Appellee, v. Jesus Adrian BENG-SALAZAR, Defendant-Appellant.

No. 04-50518.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 21, 2005.

Filed July 6, 2006.

COPYRIGHT MATERIAL OMITTED

Ellis M. Johnston, III, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant.

Christopher P. Tenorio, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Napoleon A. Jones, District Judge, Presiding. D.C. No. CR-04-00482-NAJ.

Before HALL, O'SCANNLAIN, and PAEZ, Circuit Judges.

PAEZ, Circuit Judge.

Jesus Adrian Beng-Salazar ("Beng") appeals his conviction and sentence for illegal reentry into the United States in violation of 8 U.S.C. § 1326. In a separate memorandum, we affirm Beng's conviction. In this opinion, we consider Beng's arguments that his sentence violated the Sixth Amendment and ran afoul of the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Beng was sentenced under the now-defunct mandatory Guidelines regime. We hold that Beng's timely Sixth Amendment objections, based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), were sufficient to preserve his Booker challenge to the court's imposition of his sentence using the erstwhile mandatory Guidelines. We vacate Beng's sentence and remand for resentencing under the now-advisory Guidelines system.

I. Background

In July 2004, a jury found Beng guilty of illegal reentry. At the time of his sentencing in October 2004, the Supreme Court had decided Apprendi and Blakely, but not Booker. In Apprendi, the Court 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." 530 U.S. at 490, 120 S.Ct. 2348. In Blakely, the Court relied on Apprendi to hold that Washington State's sentencing procedure violated the Sixth Amendment because it permitted a defendant to be sentenced above a standard sentencing range based on facts not found by a jury beyond a reasonable doubt. 542 U.S. at 301-05, 124 S.Ct. 2531. It was not until January 2005, however, that the Court in Booker held that "the Sixth Amendment as construed in Blakely does apply to the [federal] Sentencing Guidelines," 543 U.S. at 226-27, 125 S.Ct. 738, and crafted the remedy of converting the mandatory federal Sentencing Guidelines into advisory guidelines, id. at 245, 125 S.Ct. 738.

Beng's Presentence Report ("PSR") recommended an increase in Beng's base offense level by sixteen levels, based on the fact that he was previously deported following a conviction for a crime of violence. See U.S.S.G. § 2L1.2(b)(1)(A)(ii). The PSR also recommended that Beng be placed in Criminal History Category III, based on a calculation of five criminal history points. Relying on Apprendi and Blakely, Beng argued to the district court that these recommendations would violate his Sixth Amendment right to have a jury determine any facts that increased the maximum sentence he could receive. Beng made three arguments.

First, Beng asserted that Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which excepts prior convictions from Apprendi's general rule, effectively has been overruled. Second, Beng attempted to distinguish Almendarez-Torres from his case, arguing that it applies only to cases where a defendant admits the fact of his prior conviction. Third, Beng objected on Sixth Amendment grounds to the district court's consideration of his prior convictions in calculating his Criminal History Category.

The district court rejected Beng's arguments. Relying on its finding that Beng had been deported subsequent to a conviction for a crime of violence, the court increased Beng's offense level by sixteen levels. The court also found that Beng was in Criminal History Category III. With an adjusted offense level of twenty-four, the court calculated Beng's Guideline range to be sixty-three to seventy-eight months. The district judge sentenced Beng to seventy months in prison followed by three years of supervised release. Beng timely appealed.

II. Discussion

A. Challenges to Almendarez-Torres and 8 U.S.C. § 1326(b)

We first dispose of two of Beng's sentencing challenges, which are foreclosed by our case law. Under § 1326(b)(2), the maximum penalty for illegal reentry is increased from two years to twenty years in prison if the defendant was previously removed subsequent to a conviction for an aggravated felony.¹ In Almendarez-Torres, the Supreme Court held that "subsection [(b) of 8 U.S.C. § 1326] is a penalty provision, which simply authorizes a court to increase the sentence for a recidivist. It does not define a separate crime. Consequently, neither the statute nor the Constitution requires the Government to charge the factor that it mentions, an earlier conviction, in the indictment." 523 U.S. at 226-27, 118 S.Ct. 1219.

On appeal, Beng abandons his claim that Almendarez-Torres implicitly has been overruled by subsequent Supreme Court precedent, but renews his argument that recent decisions of the Supreme Court limit Almendarez-Torres's holding to cases where a defendant has admitted his prior convictions during a guilty plea. He cites Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), and Dretke v. Haley, 541 U.S. 386, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004), in support. Because Beng did not admit his prior convictions, and because they were neither charged in his indictment nor proved to a jury, he asserts that they could not be used to enhance his offense level or calculate his Criminal History Category.

Beng makes a separate but related argument that 8 U.S.C. § 1326(b) is unconstitutional because it permits a judge to increase a defendant's statutory maximum sentence for a § 1326 violation from two years to ten or twenty years, in violation of Apprendi. In adopting the PSR's recommendations, the court effectively increased Beng's maximum potential sentence to twenty years, based on § 1326(b)(2).

Our decision in United States v. Rodriguez-Lara, 421 F.3d 932, 949-50 (9th Cir. 2005), affirming the continued validity of Almendarez-Torres and rejecting a challenge to § 1326(b), forecloses these arguments. See also United States v. Lopez-Torres, 443 F.3d 1182, 1185 (9th Cir.2006) ("We have repeatedly rejected [the] argument [that subsequent cases undermine the holding in Almendarez-Torres], and do so again here."); United States v. Quintana-Quintana, 383 F.3d 1052 (9th Cir.2004) (reaffirming the constitutionality of 8 U.S.C. § 1326(b) in the wake of Apprendi and Blakely), cert. denied, 543 U.S. 1130, 125 S.Ct. 1100, 160 L.Ed.2d 1085 (2005).

B. Preservation of Error

Although Beng's Sixth Amendment arguments fail, we hold that his invocation of them in district court was sufficient to preserve a challenge to the nonconstitutional error identified in Booker, i.e., the fact that Beng was sentenced under the mandatory Guidelines system.

1.

Apprendi and its progeny give rise to two interrelated but distinct claims of sentencing error. First, a defendant's Sixth Amendment right to a jury trial is infringed if his maximum sentence is increased based on facts not proved to a jury beyond a reasonable doubt. A defendant who makes this claim asserts an error of constitutional magnitude. Second, the unique remedy the Supreme Court fashioned in Booker gives rise to a different kind of sentencing error. We have held that application of the mandatory Guidelines, absent a Sixth Amendment violation, constitutes nonconstitutional Booker error. United States v. Ameline, 409 F.3d 1073, 1084 n. 8 (9th Cir.2005) (en banc) ("In a case where the district court did not treat the sentencing guidelines as advisory but the defendant's sentence was not enhanced by extra-verdict findings . . . a different, nonconstitutional error occurs."). In addition to his Sixth Amendment claims, Beng argues on appeal that he is entitled to resentencing because the district court applied the now-invalidated mandatory Sentencing Guidelines to his case.

2.

A defendant challenging his sentence under Booker might be entitled to relief because either (1) his constitutional right to have a jury determine facts that enhance his maximum sentence was abridged, or (2) he was sentenced under the mandatory Guidelines regime. Beng is not entitled to relief on the first ground. Beng's argument that he is entitled to resentencing on the second ground requires us to address an issue of first impression in this circuit.

Defendants making either of the above claims for relief can preserve their arguments by raising them in the district court. Typically, we review preserved errors for harmlessness. See Fed R.Crim. P. 52(a); see also United States v. Seschillie, 310 F.3d 1208, 1214 (9th Cir.2002) (stating that when a preserved error is not of constitutional magnitude, we "reverse if there is a fair assurance of harmlessness, or stated otherwise, unless it is more probable than not that the error did not materially affect the verdict" (internal quotation marks omitted)); United States v. Walters, 309 F.3d 589, 593 (9th Cir.2002) ("The test for determining whether a [preserved] constitutional error is harmless is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (internal quotation marks omitted)). We review unpreserved errors for plain error. See Fed. R.Crim.P. 52(b); see also United States v. Recio, 371 F.3d 1093, 1100 (9th Cir.2004) (stating that we reverse when an unpreserved error is plain, affects substantial rights, and "seriously...