United States of America v. Oscar Villicana-Ibarra

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-2823
_____________
UNITED STATES OF AMERICA
v.
OSCAR VILLICANA-IBARRA,
Appellant
On Appeal From the United States District Court
for the Eastern District of Pennsylvania
(Criminal No. 2-07-cr-00770-001)
District Judge: Honorable Norma L. Shapiro
Submitted Under Third Circuit LAR 34.1(a)
September 30, 2009
Before: MCKEE, CHAGARES, and NYGAARD, Circuit Judges.
(Filed: October 28, 2009)
__________________
OPINION OF THE COURT
__________________
CHAGARES, Circuit Judge.
Oscar Villicana-Ibarra raises, for preservation purposes, a constitutional challenge
to the District Court’s use of his prior conviction to raise the statutory maximum
punishment in this case. Specifically, Villicana-Ibarra argues that his Fifth and Sixth

-- 1 of 4 --

2
Amendment rights were violated when the maximum sentence to which he was exposed
was raised from 2 to 20 years of imprisonment, based on a prior conviction that was
neither charged in the indictment nor admitted or proven to a jury beyond a reasonable
doubt. As Villicana-Ibarra acknowledges, the Supreme Court’s holding in Almendarez-
Torres v. United States, 523 U.S. 224 (1998), precludes relief in this case. We will
therefore affirm the District Court’s judgment.
I.
Because we write solely for the benefit of the parties, we will only briefly
summarize the essential facts.
Villicana-Ibarra pleaded guilty to a single count of reentry after deportation in
violation of 8 U.S.C. § 1326(a) and (b)(2). The indictment contained no allegation or
notice regarding any prior conviction for an aggravated felony, and Villicana-Ibarra did
not admit to having sustained such a conviction at his change-of-plea hearing.
The Presentence Report (“PSR”) noted that Villicana-Ibarra’s base offense level
was 8, but that he was subject to a 16-level increase under U.S.S.G. § 2L1.2 because he
was deported after a conviction for an aggravated felony. Villicana-Ibarra received a 3-
level downward departure for acceptance of responsibility, which resulted in an ultimate
offense level of 21. That offense level, together with Villicana-Ibarra’s criminal history
category of IV, rendered a Guidelines range of 57-71 months of imprisonment.
The District Court adopted the PSR calculation and sentenced Villicana-Ibarra to

-- 2 of 4 --

3
60 months of imprisonment. Villicana-Ibarra filed a timely appeal.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231. This Court has
jurisdiction pursuant to 28 U.S.C. § 1291.
This case concerns the application of Apprendi v. New Jersey, 530 U.S. 466
(2000), and thus presents a question of law over which we exercise plenary review. See
United States v. Barbosa, 271 F.3d 438, 452 (3d Cir. 2001).
III.
Villicana-Ibarra argues that the District Court violated his Fifth and Sixth
Amendment rights when it increased his maximum sentence based on a prior conviction
that was neither charged in the indictment nor admitted or proved to a jury beyond a
reasonable doubt. Villicana-Ibarra notes that 8 U.S.C. § 1326(a) carries a two-year
maximum sentence, but that he was sentenced under § 1326(b)(2), which increases the
maximum sentence to 20 years when a defendant was previously removed for conviction
of an “aggravated felony.” Villicana-Ibarra argues that the indictment in his case never
mentioned a prior conviction for an aggravated felony, and thus his sentence violates
Apprendi v. New Jersey, 530 U.S. 466 (2000).
As Villicana-Ibarra acknowledges, his argument is foreclosed by the Supreme
Court’s decision in Almendarez-Torres, 523 U.S. at 235, 243 (holding that prior
convictions that increase the statutory maximum for an offense are sentencing factors, not

-- 3 of 4 --

Specifically, the Supreme Court noted, “Even though it is arguable that1
Almendarez-Torres was incorrectly decided, and that a logical application of our
reasoning today should apply if the recidivist issue were contested, Apprendi does not
contest the decision’s validity and we need not revisit it for purposes of our decision
today to treat the case as a narrow exception to the general rule we recalled at the outset.”
Id.
4
elements of the offense, and thus may be determined by district courts by a preponderance
of the evidence). Although it is true that the Apprendi Court may have questioned the
reasoning of Almendarez-Torres, it is undisputed that ultimately the Court did not
overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489. In fact, Apprendi1
specifically held that “[o]ther 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.” Id. at 490 (emphasis added).
This Court’s decisions in United States v. Coleman and United States v. Ordaz
further reaffirmed the continued validity of Almendarez-Torres. See United States v.
Coleman, 451 F.3d 154, 159 (3d Cir. 2006) (holding that Almendarez-Torres is good law
after Apprendi); United States v. Ordaz, 398 F.3d 236, 241 (3d Cir. 2005) (applying
Almendarez-Torres to Sixth Amendment claims). We therefore conclude that the District
Court did not err in applying an increased statutory maximum in this case, based on
Villicana-Ibarra’s prior conviction.
IV.
For these reasons, we will affirm the District Court’s judgment.

-- 4 of 4 --