FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

March 28, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-10710

Non-Argument Calendar

________________________

D. C. Docket No. 06-20418-CR-UUB

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

FREDDY POLINO-MERCEDES, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(March 28, 2008)

Before ANDERSON, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:

Freddy Polino-Mercedes appeals his 46-month sentence for illegal reentry of

a removed alien, in violation of 8 U.S.C. § 1326(a) and (b). Polino-Mercedes
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raises two arguments: (1) his sentence is procedurally and substantively

unreasonable; and (2) for the first time on appeal, that the district court violated his

Fifth and Sixth Amendment rights when it used his prior felony conviction that

was not alleged in the indictment or proven to a jury beyond a reasonable doubt to

enhance his sentence pursuant to 8 U.S.C. § 1326(b)(2) and U.S.S.G.

§ 2L1.2(b)(1)(A)(i). 

First, Polino-Mercedes argues that his 46-month sentence is procedurally

and substantively unreasonable because the district court failed to adequately and

properly consider the § 3553(a) factors. Further, Polino-Mercedes argues that the

sentence fails to take into consideration potential sentencing disparities because, if

he had been convicted of cocaine trafficking in federal court, rather than state

court, his Guideline range would likely have been lower, and thus he might have

received a lower sentence based on the instant offense. Additionally, PolinoMercedes argues that a 16-level enhancement for a prior aggravated felony is

unreasonable because it fails to distinguish between more severe and less severe

misconduct, it double or triple counts the criminal history points, and it fails to take

into account disparities across districts in reentry cases due to the existence of

“fast-track” programs in certain districts. Polino-Mercedes further argues that his

sentence is unreasonable particularly because his conduct was minor. Polino-
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Mercedes cites Lopez v. Gonzales, 549 U.S. ___, 127 S.Ct. 625 (2006), for the

proposition that federal law, rather than state law, should be the benchmark of the

“seriousness” of a drug trafficking crime for federal sentencing purposes. 

Pursuant to the Supreme Court’s decision in United States v. Booker, 543

U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we review a district court’s

ultimate sentence for reasonableness. United States v. Arevalo-Juarez, 464 F.3d

1246, 1249 (11th Cir. 2006). The sentencing court must first correctly calculate

the defendant’s Guideline range. United States v. Talley, 431 F.3d 784, 786 (11th

Cir. 2005). Second, the sentencing court must consider the factors listed in 18

U.S.C. § 3553(a) to determine a reasonable sentence. Id. When we review a

sentence for reasonableness, we consider “the final sentence, in its entirety, in light

of the § 3553(a) factors.” United States v. Martin, 455 F.3d 1227, 1237 (11th Cir.

2006). 

Unreasonableness may be procedural or substantive. United States v. Hunt,

459 F.3d 1180, 1182 n.3 (11th Cir. 2006). A sentence may be procedurally

unreasonable if “it is the product of a procedure that does not follow Booker’s

requirements, regardless of the actual sentence.” Id. Moreover, a sentence may be

procedurally unreasonable if the district court failed to consider the relevant

§ 3553(a) factors. Talley, 431 F.3d at 786. A sentence “may be substantively
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unreasonable, regardless of the procedure used.” Hunt, 459 F.3d at 1182 n.3. The

weight accorded to the § 3553(a) factors is within the district court’s discretion. 

United States v. Williams, 456 F.3d 1353, 1363 (11th Cir. 2006), cert. dismissed,

127 S.Ct. 3040 (2007). The § 3553(a) factors include: (1) the nature and

circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence (A) to reflect the seriousness of the offense, to

promote respect for the law, and to provide just punishment for the offense, (B) to

afford adequate deterrence to criminal conduct, (C) to protect the public from

further crimes of the defendant, and (D) to provide the defendant with needed

educational or vocational training or medical care; (3) the kinds of sentences

available; (4) the Sentencing Guidelines range; (5) pertinent policy statements of

the Sentencing Commission; (6) the need to avoid unwarranted sentencing

disparities; (7) and the need to provide restitution to victims. See 18 U.S.C. §

3553(a)(1)-(7). 

Polino-Mercedes’s argument that disparities in sentences that arose due to a

lack of fast-track programs in certain districts fails because, in Arevalo-Juarez, we

held that “it was impermissible for the district court to consider disparities

associated with early disposition programs in imposing [defendant’s] sentence,

because such disparities are not ‘unwarranted sentencing disparities’ for the
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purposes of § 3553(a)(6).” 464 F.3d at 1251. 

Regarding whether Polino-Mercedes’s prior cocaine conviction was

impermissibly double or triple counted, the district court considered the issue when

it asked the government for a response to Polino-Mercedes’s argument. Moreover,

we have held,

Impermissible double counting occurs only when one part of the

Guidelines is applied to increase a defendant’s punishment on account

of a kind of harm that has already been fully accounted for by

application of another part of the Guidelines. We presume that the

Sentencing Commission intended separate guidelines sections to

apply cumulatively, unless specifically directed otherwise. Double

counting a factor during sentencing is permitted if the Sentencing

Commission . . . intended that result and each guideline section in

question concerns conceptually separate notions relating to

sentencing.

United States v. Dudley, 463 F.3d 1221, 1226-27 (11th Cir. 2006) (quotations and

citations omitted). Polino-Mercedes does not argue that the district court

incorrectly calculated his Guideline range. However, he argues that his sentence is

unreasonable because his prior conviction is double or triple counted, and thus

results in a sentencing disparity because his sentence is the same as that for

someone who has been convicted of a more serious crime. His argument fails

because this disparity is not unwarranted as it was created by a proper application

of the Guidelines. 

To the extent that Polino-Mercedes argues that he received a procedurally
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unreasonable sentence because the district court failed to consider his arguments

and the § 3553(a) factors, his argument fails. Before sentencing Polino-Mercedes,

the district court judge stated, “I think the guideline sentence is a reasonable

sentence and I’m going [to] impose a sentence at the low end of the guidelines.” 

However, the district court discussed various § 3553(a) factors before it sentenced

Polino-Mercedes. Further, the court explicitly stated that it had considered PolinoMercedes’s arguments and the § 3553(a) factors. In fact, the district court

specifically mentioned § 3553(a) three times. Therefore, the record shows that the

court complied with Booker’s requirements. See Talley, 431 F.3d at 786. The

record also shows that the district court did not presume a within-guidelines

sentence to be reasonable. 

Polino-Mercedes argues that the Supreme Court’s holding in Lopez, 549

U.S. ___, 127 S.Ct. 625, indicates that federal rather than state law should be the

benchmark of the “seriousness” of a drug trafficking crime for federal sentencing

purposes. In Lopez, the Court held that for purposes of determining whether a

felony is an aggravated felony for purposes of the Immigration and Nationality

Act, “a state offense constitutes a ‘felony punishable under the Controlled

Substances Act’ only if it proscribes conduct punishable as a felony under that

federal law.” Id. at ___, 127 S.Ct. at 633. Here, Polino-Mercedes concedes that
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his conviction for selling cocaine would have been a felony under federal law

because he admits that he would have been eligible for a term of imprisonment of 8

to 14 months if he had been sentenced under federal law. Polino-Mercedes’s

argument fails because the Guidelines properly accounted for the seriousness of his

underlying conviction and the district court considered his argument. 

Regarding whether Polino-Mercedes’s sentence is reasonable, the district

court stated that it had considered the statements of the parties, the PSI, the

advisory Guidelines range, as well as the § 3553(a) factors. At the sentencing

hearing, the district court heard argument from counsel for Polino-Mercedes,

argument from counsel for the government, and a statement from Polino-Mercedes. 

To the extent that Polino-Mercedes argues that the district court failed to give

weight to his factors asserted in support of a lower sentence, such as the need for

healthcare and his personal circumstances, that decision is within the district

court’s discretion. See Williams, 456 F.3d at 1363 (“The weight to be accorded

any given § 3553(a) factor is a matter committed to the sound discretion of the

district court.”). Further, Polino-Mercedes’s 46-month (3 years, 10 months)

sentence was at the bottom of the Guidelines range and below the statutory

maximum of 20 years’ imprisonment. See 8 U.S.C. § 1326(b)(2), see also

Winingear, 422 F.3d at 1246. Based on this record, Polino-Mercedes has not met
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the burden of establishing the unreasonableness of his sentence.

Second, Polino-Mercedes argues for the first time on appeal that his Fifth

and Sixth Amendment rights were violated when the district court used his prior

conviction that was not alleged in the indictment or proven to a jury beyond a

reasonable doubt to enhance his sentence under both U.S.S.G. § 2L1.2(b)(1)(A)

(adding 16 levels for having a prior aggravated felony) and 8 U.S.C. § 1326(b)(2)

(increasing the statutory maximum to 20 years’ imprisonment). He acknowledges

that his argument is foreclosed by our precedent, but raises the claim to preserve it

for further appellate review. Because Polino-Mercedes did not raise an objection

based on the Fifth and Sixth Amendments in the district court, we review his

constitutional claim for plain error. See United States v. Day, 465 F.3d 1262, 1264

(11th Cir. 2006).

“An appellate court may not correct an error the defendant failed to raise in

the district court unless there is: (1) error, (2) that is plain, and (3) that affects

substantial rights. If all three conditions are met, an appellate court may then

exercise its discretion to notice a forfeited error, but only if (4) the error seriously

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

States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005) (citations and

quotations omitted). An error is not plain “if it is not clear under current law.” 
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United States v. Chau, 426 F.3d 1318, 1322 (11th Cir. 2005) (citation and

quotations omitted). 

In Almendarez-Torres, the Supreme Court held the government need not

allege in its indictment and need not prove beyond a reasonable doubt that a

defendant had prior convictions in order for the district court to use those

convictions for purposes of enhancing a sentence. 523 U.S. at 235-39, 118 S.Ct. at

1226-29. We have noted that, while recent decisions, including Shepard, may

arguably cast doubt on the future prospects of Almendarez-Torres, the case is still

controlling precedent as the Supreme Court has not explicitly overruled it. United

States v. Camacho-Ibarquen, 410 F.3d 1307, 1316 n.3 (11th Cir.), cert. denied, 546

U.S. 951 (2005). As the Supreme Court has stated, its “decisions remain binding

precedent until [it] see[s] fit to reconsider them, regardless of whether subsequent

cases have raised doubts about their continuing vitality.” Hohn v. United States,

524 U.S. 236, 252-53, 118 S.Ct. 1969, 1978, 141 L.Ed.2d 242 (1998). 

While the Supreme Court may have cast doubt on Almendarez-Torres, it has

not specifically overruled that case. Camacho-Ibarquen, 410 F.3d at 1316 n.3. As

such, any error is not plain because it is not clear under Supreme Court or our

caselaw. See Chau, 426 F.3d at 1322 (“where the explicit language of a statute or

rule does not specifically resolve an issue, there can be no plain error where there
 Polino-Mercedes’s request for oral argument is denied. 1

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is no precedent from the Supreme Court or this Court directly resolving it.”). Thus,

Polino-Mercedes’s argument that the district court violated his Fifth and Sixth

Amendment rights by increasing the statutory maximum under 8 U.S.C.

§ 1326(b)(2) fails. Based on our precedent, Polino-Mercedes has failed to show

plain error. 

Upon review of the record, and upon consideration of the briefs of the

parties, we discern no reversible error. Therefore, we affirm. 

AFFIRMED. 

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