FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 6, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-10795

Non-Argument Calendar

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D. C. Docket No. 07-80162-CR-KLR

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

JOSEPH LEROY BETHEL, 

a.k.a. Jason Williams, 

a.k.a. Johnny Lee Cross, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(August 6, 2008)

Before BIRCH, DUBINA and MARCUS, Circuit Judges.

PER CURIAM:

Joseph Leroy Bethel appeals from his 70-month sentence for illegal reentry

of a previously removed alien, in violation of 8 U.S.C. § 1326(a) and (b)(2). On
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appeal, Bethel argues: (1) that his sentence was substantively unreasonable

because his offense was nonviolent and he had been making strides at becoming a

productive member of society; and (2) that his sentence was unconstitutionally

enhanced because the enhancement was based upon the fact of a prior conviction

that was not alleged in the indictment. After thorough review, we affirm.

We review the ultimate sentence imposed by a district court for

“reasonableness,” which “merely asks whether the trial court abused its

discretion.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008) (quoting

Rita v. United States, 127 S. Ct. 2456, 2465 (2007)). We review a defendant’s

preserved constitutional challenge to his sentence de novo. United States v. Paz,

405 F.3d 946, 948 (11th Cir. 2005). 

We are unpersuaded by Bethel’s argument that his sentence is unreasonable.

In reviewing sentences for reasonableness, we perform two steps. Pugh, 515 F.3d

at 1190. First, we must “‘ensure that the district court committed no significant

procedural error, such as failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the §

3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence -- including an explanation for any

deviation from the Guidelines range.’” Id. (quoting Gall v. United States, 128
 The § 3553(a) factors include: (1) the nature and circumstances of the offense and the 1

history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the

seriousness of the offense, to promote respect for the law, and to provide just punishment for the

offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to protect

the public; (5) the need to provide the defendant with educational or vocational training or medical

care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the pertinent

policy statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing

disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a). 

 In his reply brief, Bethel concedes that he is not challenging the procedural 2

reasonableness of his sentence. 

 See also Rita, 127 S. Ct. at 2462 (holding that a court of appeals may afford a 3

presumption of reasonableness to a within-Guidelines sentence); United States v. Campbell, 491

F.3d 1306, 1314 n.8 (11th Cir. 2007) (noting that, although we have not normally afforded a withinGuidelines sentence a presumption of reasonableness, Rita calls that policy into question).

3

S.Ct. 586, 597 (2007)). If we conclude that the district court did not procedurally 1

err, we must consider the “‘substantive reasonableness of the sentence imposed,

under an abuse-of-discretion standard,’” based on the “‘totality of the

circumstances.’” Id. (quoting Gall, 128 S. Ct. at 597). “The party who challenges

the sentence bears the burden of establishing that the sentence is unreasonable in

the light of both th[e] record and the factors in section 3553(a).” United States v.

Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006) (internal quotation omitted).

 Bethel has not shown that his sentence is substantively unreasonable.2

Bethel had an extensive criminal history and was a habitual traffic offender, and

his present case stemmed from an arrest for domestic violence. In addition, he was

sentenced at the low-end of the advisory Guidelines range. Accordingly, the 3
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district court did not abuse its discretion by imposing a 70-month sentence.

We likewise find no merit to Bethel’s contention that the district court erred

by enhancing his sentence based on a prior conviction that was not alleged in the

indictment. Under 8 U.S.C. § 1326(a), an alien who has been deported and then

reenters the United States without permission is subject to a maximum sentence of

two years’ imprisonment. 8 U.S.C. § 1326(a). However, the maximum sentence

increases to 20 years’ imprisonment if the alien was convicted of an “aggravated

felony” before removal. 8 U.S.C. § 1326(b)(2). 

In Almendarez-Torres, 523 U.S. 224 (1998), the Supreme Court held that a

defendant’s prior convictions did not need to be alleged in the indictment to be

used in sentencing. The Supreme Court reaffirmed this holding in Apprendi v.

New Jersey, 530 U.S. 466, 490 (2000), stating 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.” However, in Apprendi and subsequent decisions the Supreme Court has

cast doubt on the continuing vitality of Almendarez-Torres, while not actually

overruling it. See, e.g., Apprendi, 530 U.S. at 489-90; Shepard v. United States,

544 U.S. 13, 27-28 (2005) (Thomas, J., concurring in part and concurring in the

judgment). Nevertheless, we have stated that we will continue to apply
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Almendarez-Torres until the Supreme Court chooses to overrule it. E.g., United

States v. Dowd, 451 F.3d 1244, 1253 (11th Cir. 2006); United States v. Greer, 440

F.3d 1267, 1273-76 (11th Cir. 2006).

The Supreme Court has held that when a court determines the “character” of

a previous conviction it may examine “the statutory definition, charging

document, written plea agreement, transcript of plea colloquy, and any explicit

factual finding by the trial judge to which the defendant assented,” but it may not

look to police reports or complaint applications to determine facts about a

defendant’s prior conviction. Shepard, 544 U.S. at 16 (determining whether a

conviction qualified as a violent felony under the Armed Career Criminal Act).

We held that Shepard does not limit a sentencing court from determining the

character of a prior conviction from the statutory elements of the offense. Greer,

440 F.3d at 1275.

Under this case law, the district court did not err by considering Bethel’s

prior conviction when enhancing his sentence. Moreover, Bethel has not put forth

anything from the record to show that the district court considered something

other than the statutory elements of the prior conviction when determining its

character. Accordingly, Bethel’s sentence enhancement was constitutional.

AFFIRMED.