FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

May 31, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-16521

Non-Argument Calendar

________________________

D. C. Docket No. 05-00100-CR-ORL-19KRS

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

SAMUEL BRAMINA LOPEZ, 

a.k.a. Diconcio Montano, 

a.k.a. Deonicio Montano-Gomez, 

a.k.a. Dionicio Montano-Gomez, 

a.k.a. Beto Garcia, 

a.k.a. Samuel Brambila-Lopez, 

a.k.a. Montano Brambila-Lopez, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(May 31, 2006)
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Before DUBINA, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

Samuel Bramina-Lopez was charged with illegal re-entry after deportation,

in violation of 8 U.S.C. § 1326(a). The indictment alleged that he had been

deported in 1997 and had since been found in the United States without permission

to re-enter. He agreed to plead guilty without a written plea agreement. 

At the change-of-plea hearing, he admitted that he was a citizen of Mexico,

that he had been deported in 1997, and that he had re-entered without permission. 

The government proffered that Bramina-Lopez had been deported in 1991, 1993,

1995, and 1997, and that the 1997 deportation occurred after Bramina-Lopez’s

conviction for illegal re-entry. Bramina-Lopez disputed these facts, although he

admitted to the 1997 deportation alleged in the indictment. 

The probation officer prepared a presentence investigation report (“PSI”),

assigning a base offense level of 8 under U.S.S.G. § 2L1.2(a), with a 16-level

enhancement under § 2L1.2(b)(1)(A)(ii) because Bramina-Lopez had been

deported after a crime of violence. The probation office deducted 3 levels for

acceptance of responsibility under U.S.S.G. § 3E1.1, resulting in a total offense

level of 21. 

Calculating Bramina-Lopez’s criminal history, the probation officer cited
 According to the PSI, Bramina-Lopez was deported following his 1991 conviction. He 1

was deported again following his 1993 convictions. Bramina-Lopez was found in the United States

in 1994 and was deported in May 1995. In September 1995, he was found again in the United States

and was deported in 1997. In April 1998, he was charged with illegal re-entry and apparently

released, but the probation officer did not have the specifics of the offense. He was then arrested

again in 2005 on the instant offense.

 Bramina-Lopez asserted that the robbery involved only a twelve-pack of beer. In any 2

event, the two rape convictions should be sufficient to establish a prior crime of violence for

purposes of the enhancement. U.S.S.G. § 2L1.2, comment. (n.1(B)(iii)). 

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(1) a 1990 conviction for robbery of $950, and the subsequent violation of

supervised release due to the failure to pay restitution; (2) a 1991 conviction for

possession of cocaine; (3) two 1993 convictions for rape; (4) a 1995 conviction for

delivery of a controlled substance; and (5) convictions in 1995 and 1998 for illegal

re-entry. These convictions resulted in 14 criminal history points, but 2 more 1

points were added because the instant offense began on or about April 2, 1998 and

occurred less than 2 years after Bramina-Lopez’s release from custody in 1996. 

With a total of 16 points, Bramina-Lopez’s criminal history fell in category VI, and

the resulting advisory guidelines range was 77 to 96 months imprisonment. 

Bramina-Lopez made only one objection to the PSI; he challenged the prior

conviction for robbery. The court sustained the objection and changed the PSI to 2

reflect Bramina-Lopez’s version of the offense, but there was no change in the

criminal history category. At no time did Bramina-Lopez challenge the 16-level

enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). He suggested, however, that a
 United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). 3

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five-year sentence was sufficient to meet the sentencing goals. The court rejected

this proposed sentence, noting the lengthy criminal history and the multiple prior

deportations and re-entries. The court then considered the guidelines range and the

sentencing factors of 18 U.S.C. § 3553(a), and determined that a sentence of 80

months was appropriate to deter the behavior and protect society. Bramina-Lopez

raised no other objections.

On appeal, Bramina-Lopez argues that the court plainly erred by enhancing

his sentence based on a prior conviction that was not proven to a jury or admitted

by him. 

 When a defendant fails to object to an error before the district court, we

review the argument for plain error. United States v. Rodriguez, 398 F.3d 1291,

1298 (11th Cir.), cert. denied, 125 S.Ct. 2935 (2005). Plain error occurs where

(1) there is an error; (2) that is plain or obvious; (3) affecting the defendant’s

substantial rights in that it was prejudicial and not harmless; and (4) that seriously

affects the fairness, integrity, or public reputation of the judicial proceedings. Id. 

Here, Bramina-Lopez cannot show plain error in his guidelines calculations. 

An enhancement based on a prior conviction, even if not admitted by the

defendant, does not represent a constitutional Booker error. United States v. 3
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Martinez, 434 F.3d 1318, 1323 (11th Cir. 2006); United States v. Cantellano, 430

F.3d 1142, 1147 (11th Cir. 2005), cert. denied, 126 S.Ct. 1604 (2006); United

States v. Orduno-Mireles, 405 F.3d 960, 962-63 (11th Cir. 2005); United States v.

Camacho-Ibarquen, 404 F.3d 1283, 1290 (11th Cir. 2005); see also United States

v. Taylor, 417 F.3d 1176, 1182-83 (11th Cir.), cert. denied, 126 S.Ct. 768 (2005). 

Moreover, by not challenging all of his prior convictions at sentencing, BraminaLopez admitted them. United States v. Williams, 438 F.3d 1272, 1273-74 (11th

Cir. 2006); United States v. Burge, 407 F.3d 1183, 1191 (11th Cir.), cert. denied,

126 S.Ct. 551 (2005). Therefore, there is no merit to Bramina-Lopez’s arguments,

and we AFFIRM.