Case No: 05-5245 UNITED STATES OF AMERICA v. Carlos Enrique Diaz-Hernandez

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The Honorable Eugene E. Siler, Senior Circuit Judge for the United States Court of
Appeals for the Sixth Circuit, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 05-5245
UNITED STATES OF AMERICA
v.
CARLOS ENRIQUE DIAZ-HERNANDEZ,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No.: 04-02J
District Judge: The Honorable Kim R. Gibson
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
June 4, 2007
Before: SMITH, COWEN, and SILER, Circuit Judges*
(Filed: June 12, 2007)
OPINION
SMITH, Circuit Judge.
Carlos Enrique Diaz-Hernandez is a native and citizen of Mexico. He was
convicted in Bedford County, Pennsylvania of assault and possession of a firearm. Diaz-

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Hernandez returned to Mexico on April 15, 2003, pursuant to an order of removal issued
by an immigration judge in York, Pennsylvania. He understood that he could not reenter
the United States without permission.
Diaz-Hernandez illegally reentered the United States on May 1, 2003. On October
25, 2003, the Pennsylvania State Police found Diaz-Hernandez in Bedford, Pennsylvania.
Diaz-Hernandez was indicted under 8 U.S.C. § 1326 for knowingly and unlawfully
reentering the United States after having been removed. The District Court sentenced
him to 46 months imprisonment.
Following the United States Supreme Court’s decision in United States v. Booker,
543 U.S. 220 (2005), Diaz-Hernandez sought a remand for resentencing. This Court
granted the motion. The District Court imposed the same sentence. This appeal
followed.
The District Court exercised jurisdiction over this action under 18 U.S.C. § 3231.
This Court has jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.
Diaz-Hernandez argues that, because his prior conviction for an aggravated felony
increased his statutory maximum penalty, his prior conviction should have been charged
in the indictment and proven to the jury beyond a reasonable doubt. He maintains that
failure in either respect violates his rights under the Sixth Amendment.
Diaz-Hernandez concedes that the Supreme Court has settled this issue in
Almendarez-Torres v. United States, 523 U.S. 224 (1998). Diaz-Hernandez

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acknowledges that he pursues this appeal only to preserve this claim should the Supreme
Court alter or overturn Almendarez-Torres. 523 U.S. at 243.
In Almendarez-Torres, the Supreme Court held that 8 U.S.C. § 1326(b)(2), which
sets a higher statutory maximum penalty for violators with a prior conviction for an
aggravated felony, is a penalty provision, not a separate offense. 523 U.S. at 243.
Therefore, the Government is not required by the Sixth Amendment to charge and prove
the prior conviction beyond a reasonable doubt. Id. Almendarez-Torres stands for the
principle that prior convictions that increase the statutory maximum penalty for an
offense are not elements of the offense and thus may be found by a district court by a
preponderance of the evidence. See id.
This Court has held that Almendarez-Torres survived the Supreme Court’s
decision in Booker, 543 U.S. at 244. See United States v. Ordaz, 398 F.3d 236, 241 (3d
Cir. 2005). We will affirm the District Court’s judgment.

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