In U.S. v. Orduno-Mireles, No. 04-12630 (April 6, 2005), the Court (Birch, Barkett, Marcus) rejected post-Booker challenges to a defendant’s 16-level enhancement pursuant to USSG § 2L1.2(b)(1)(A), after a conviction for illegal re-entry after being deported subsequent to an aggravated felony conviction.
The Court rejected the argument that the defendant’s prior convictions for unlawful sexual activity with certain minors, and burglary of a dwellin, can be used to support a 16-level enhancement. The Court noted that these offenses are specifically listed in the Guideline as qualifying offenses. The Court rejected the argument that the vacatur of one conviction after Orduno-Mireles’ return to the United States meant that it should not count for enhancement purposes. The Court pointed out that the Guideline was worded to take account of convictions prior to deportation, and that it did not matter whether the conviction was subsequently vacated.
The Court also rejected the argument that the fact of prior conviction should have been submitted to a jury. The Court pointed out that Almendarez-Torres remains good law. The Court added that the recent Shephard v. U.S. case did not alter this result, because Shephard involved the resolution of disputed issues of fact, and, here, the facts underlying the prior convictions were not in dispute.
In a lengthy footnote, the Court noted that there was no "plain error" in the imposition of mandatory Guideline enhancements, post-Booker, because the sentencing court declined a motion for downward departure, thereby undermining a showing (required in the third prong of Booker plain error analysis in the Eleventh Circuit) of a reasonable probability of a different result if the Guidelines had been applied in an advisory fashion. [Note: Given the strict pre-Booker limitations on obtaining downward departures, it seems questionable whether this is a reliable indicator of a different result under an advisory regime. In this case, one prior qualifying conviction was vacated, and the district court might have been more concerned about this vacatur had it realized that the Guideline language which made this vacatur irrelevant was not binding.]
