FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEBRUARY 1, 2006

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

-------------------------------------------

No. 05-10654

Non-Argument Calendar

--------------------------------------------

D.C. Docket No. 04-00366-CR-T-30-MAP

UNITED STATES OF AMERICA,

 

Plaintiff-Appellee, 

versus

ANTONIO CARLOS-SANTOS,

a. k. a. Antonio Carlos,

 Defendant-Appellant. 

----------------------------------------------------------------

Appeal from the United States District Court

for the Middle District of Florida 

----------------------------------------------------------------

Before EDMONDSON, Chief Judge, HULL and WILSON, Circuit Judges.

PER CURIAM:

Defendant-Appellant Antonio Carlos-Santos appeals his 77-month sentence

imposed after he pled guilty to illegal reentry of a previously deported alien, in
 Defendant’s sentencing hearing took place 16 days after Booker was decided. The district court

1

applied the Sentencing Guidelines as advisory.

2

violation of 8 U.S.C. § 1326(a), (b)(2). The district court applied a 16-level

offense level enhancement, under U.S.S.G. § 2L1.2(b)(1)(A), because Defendant

had been deported after earlier convictions for alien smuggling and for carrying a

concealed firearm. No reversible error has been shown; we affirm. 

Defendant acknowledges that he brings this appeal only to preserve an

argument that Almendarez-Torres v. United States, 118 S.Ct. 1219 (1998), was

decided wrongly in the light of Apprendi v. New Jersey, 120 S.Ct. 2348 (2000),

Blakely v. Washington, 124 S.Ct. 2531 (2004), and United States v. Booker, 125

S.Ct. 738 (2005). And he maintains that his case is distinguishable from

1

Almendarez-Torres. First, he did not stipulate to his earlier convictions at the

guilty plea hearing: he asserts that his convictions needed to be admitted by him or

proved to a jury beyond a reasonable doubt. Second, he contends that he did not

admit to the characterization of his earlier conviction for conspiracy to transport

aliens as an “alien smuggling” offense under U.S.S.G. § 2L1.2(b)(1)(A)(vii). 
 On plain error review, a defendant must show “error” that is “plain” and that “affect[s] 2

substantial rights.” United States v. Olano, 113 S.Ct. 1770, 1776 (1993). It is only after these

conditions have been satisfied that an appellate court then may exercise its discretion and correct the

error if it seriously affects the fairness, integrity or public reputation of the judicial proceedings. Id.

3

Defendant concedes that he did not raise these arguments in the district

court: we review for plain error. See United States v. Rodriguez, 398 F.3d 1291,

1298 (11th Cir.), cert. denied, 125 S.Ct. 2935 (2005).2

The district court committed no Sixth Amendment error. Defendant

correctly observes that he did not admit during the guilty plea colloquy the earlier

convictions for conspiracy to transport aliens and for carrying a concealed firearm. 

But Defendant failed to object to the fact statements in the presentence

investigation report (PSI) about his earlier convictions. Thus, Defendant admitted

to the existence of the convictions underlying the sentencing enhancement. See

United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005) (defendant’s

failure to object at sentencing to PSI’s fact statements about relevant conduct

constitutes admission to facts in PSI).

And Defendant’s 16-level enhancement was based solely on his earlier

convictions. In Almendarez-Torres v. United States, 118 S.Ct. 1219 (1998), the

Supreme Court stated that the government need not allege in the indictment and

need not prove beyond a reasonable doubt that a defendant had a prior conviction
4

for a district court to use that conviction to enhance a sentence. “This conclusion

was left undisturbed by Apprendi, Blakely, and Booker.” Shelton, 400 F.3d

at 1329. Thus, the district court did not violate Defendant’s constitutional rights

by applying the § 2L1.2(b)(1)(A) enhancement based on his earlier convictions. 

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

Moreover, we have rejected Defendant’s argument that the enhancement

was improper because he did not stipulate that his conviction for conspiracy to

transport aliens was an “alien smuggling” offense under § 2L1.2(b)(1)(A)(vii). 

See Gallegos-Aguero, 409 F.3d at 1276-77 (rejecting argument that Sixth

Amendment requires jury, not a judge, to determine whether earlier conviction is

within category of offenses specified in § 2L1.2(b)(1)(A)(vii)). In any event, the

district court also noted that it could base the 16-level enhancement on

Defendant’s convictions for carrying a concealed firearm. See U.S.S.G.

§ 2L1.2(b)(1)(A)(iii).

The district court committed no error, plain or otherwise, in applying the 

16-level § 2L1.2(b)(1)(A) enhancement.

AFFIRMED.