United States of America v. Antonio Augustine-Neri

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4921
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO AUGUSTINE-NERI,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:07-cr-00463-REP-1)
Submitted: August 4, 2009 Decided: August 17, 2009
Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Robert L. Flax, Richmond, Virginia, for Appellant. Dana J.
Boente, Acting United States Attorney, Richard D. Cooke, S.
David Schiller, Assistant United States Attorneys, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Antonio Augustine-Neri was convicted after a bench
trial of illegally reentering the United States after having
previously been deported following a conviction for an
aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2)
(2006). The district court sentenced Augustine-Neri to 125
months of imprisonment and Augustine-Neri now appeals. Finding
no error, we affirm.
Augustine-Neri first challenges the district court’s
application of a sixteen-level upward adjustment in calculating
the advisory guidelines range. See U.S. Sentencing Guidelines
Manual (“USSG”) § 2L1.2(b)(1)(A) (2007). Augustine-Neri argues
that since prior convictions for which a defendant completed his
term of imprisonment more than fifteen years prior to the date
of the offense of conviction are not considered in calculating
criminal history under the guidelines, such convictions should
likewise not be considered in determining the applicable offense
level under the guidelines. See USSG § 4A1.2. Therefore,
Augustine-Neri argues, since he completed his sentences for his
prior convictions for crimes of violence more than fifteen years
prior to the date of his arrest for the instant offense, these
prior convictions should not be considered in determining the
applicable offense level.
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Because Augustine-Neri failed to challenge the
guidelines calculation in the district court, we review this
claim for plain error. See United States v. Muhammad, 478 F.3d
247, 249 (4th Cir. 2007). “To establish plain error,
[Augustine-Neri] must show that an error occurred, that the
error was plain, and that the error affected his substantial
rights.” Id. Even if Augustine-Neri satisfies these
requirements, “correction of the error remains within [the
Court’s] discretion, which [the Court] should not exercise . . .
unless the error seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” Id. (internal
quotation marks and citation omitted). We have thoroughly
reviewed the record and conclude that Augustine-Neri has failed
to demonstrate that the district court erred in calculating the
advisory guidelines range by including the challenged offenses
under USSG § 2L1.2(b)(1)(A)(ii).
Augustine-Neri next challenges the indictment and
sentence, arguing that the district court violated his right
under the Sixth Amendment to a jury trial because prior
convictions were relied upon to prove the existence of a prior
aggravated felony in the indictment and to increase the offense
level. Augustine-Neri did not object to the indictment or
sentence on the grounds that they violated Apprendi v. New
Jersey, 530 U.S. 466 (2000) in the district court and,
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therefore, this issue is reviewed for plain error. See United
States v. Olano, 507 U.S. 725, 731-32 (1993). However, as
Augustine-Neri waived his right to a jury trial, the claim as to
the indictment is without merit. Further, he admitted the prior
convictions.
In addition, the mere fact that the increased
guidelines range is based on the fact of a prior conviction
forecloses Augustine-Neri’s argument. As this court has
repeatedly recognized, “the Sixth Amendment (as well as due
process) does not demand that the mere fact of a prior
conviction used as a basis for a sentencing enhancement be
pleaded in an indictment and submitted to a jury for proof
beyond a reasonable doubt.” United States v. Cheek, 415 F.3d
349, 352 (4th Cir. 2005). Therefore, the Government did not
have to include the fact of Augustine-Neri’s prior convictions
in the indictment and was not required to prove the prior
convictions beyond a reasonable doubt. Moreover, Augustine-Neri
was not exposed to a sentence beyond the prescribed statutory
maximum. See Apprendi, 530 U.S. at 490 (“Other 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.”). We
therefore find no plain error.
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Finally, Augustine-Neri argues that the district court
erred in not granting a downward departure or varying from the
advisory guidelines range based on Augustine-Neri’s family
obligations, age, and the relative age of his prior convictions
for violent felonies. Because Augustine-Neri did not object to
the guidelines calculation and did not move for a variance or
downward departure from the guidelines range in the district
court, we review this issue for plain error. See Muhammad, 478
F.3d at 249. We have thoroughly reviewed the record and
conclude that Augustine-Neri has failed to demonstrate that the
district court erred in sentencing him within the advisory
guidelines range. To the extent he attempts to argue that his
sentence was unreasonable, we conclude that the district court’s
sentence was reasonable. See Rita v. United States, 551 U.S.
338, ___, 127 S. Ct. 2456, 2462-69 (2007) (upholding presumption
of reasonableness for within-guidelines sentence); Gall v.
United States, 552 U.S. 38, ___, 128 S. Ct. 586, 597 (2007) (we
review first for procedural error and then consider substantive
reasonableness of sentence imposed).
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid in the decisional
process.
AFFIRMED

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