The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 24, 2006
No. 06-11393 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00005-CR-FTM-33-SPC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE VITA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 24, 2006)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Jose Vita appeals his sentence of 240 months’ imprisonment, imposed after
he pled guilty to conspiracy to possess with intent to distribute more than 1,000
marijuana plants, 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(vii), and possession with
intent to distribute more than 1,000 marijuana plants, 21 U.S.C. § 841(a)(1),
(b)(1)(A)(vii). Vita asserts the district court erred by: (1) applying a sentencing
enhancement pursuant to 21 U.S.C. § 851 because the fact of his prior conviction
was not included in the indictment or admitted by him; (2) applying an
aggravating-role enhancement, pursuant to U.S.S.G. § 3B1.1(a), based on safety-
valve statements from other co-conspirators when he did not have advance notice
or a meaningful opportunity to comment on this evidence during the sentencing
hearing; (3) applying a four-level aggravating-role enhancement, noting the facts
support only a two-level enhancement; and (4) finding him accountable for over
11,000 marijuana plants, noting the number of plants found on his property totaled
between 6,000 to 7,000 and that the record is silent as to whether any of the
marijuana found at the other grow house locations could be counted as “marijuana
plants” under U.S.S.G. § 2D1.1. The district court did not err, and we affirm
Vita’s sentence.
As to Vita’s argument that the fact of his prior conviction was not included
in his indictment or admitted, we review preserved constitutional claims de novo,
2
but reverse for harmful error only. United States v. Paz, 405 F.3d 946, 948 (11th
Cir. 2005). “[A] district court does not err by relying on prior convictions to
enhance a defendant’s sentence.” United States v. Shelton, 400 F.3d 1325, 1329
(11th Cir. 2005). In Almendarez-Torres v. United States, the Supreme Court held
that prior convictions could be considered and used to enhance a defendant’s
sentence without having been alleged in the indictment or proved beyond a
reasonable doubt. 118 S. Ct. 1219, 1231-32 (1998). Subsequent decisions,
namely, Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), Blakely v. Washington,
124 S. Ct. 2531 (2004), and United States v. Booker, 125 S. Ct. 738 (2005) have
not disturbed its holding. See United States v. Camacho-Ibarquen, 410 F.3d 1307,
1316 (11th Cir.), cert. denied, 126 S. Ct. 457 (2005). “Although recent decisions,
including Shepard v. United States, 125 S. Ct. 1254 (2005), may arguably cast
doubt on the future prospects of Almendarez-Torres’s holding regarding prior
convictions, the Supreme Court has not explicitly overruled Almendarez-Torres.
As a result, we must follow Almendarez-Torres.” Id. at 1316 n.3.
Vita acknowledges that whether a district court can enhance a sentence
based on prior convictions not alleged in the indictment nor proven beyond a
reasonable doubt survives solely on the continued vitality of Almendarez-Torres.
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As we have held the decision in Almendarez-Torres is still good law, Vita’s issue
fails. See id. at 1315-16.
As to Vita’s remaining arguments concerning the Guidelines, “[a]n error in
the district court’s calculation of the advisory Guidelines range warrants vacating
the sentence, unless the error is harmless. . . . A Guidelines miscalculation is
harmless if the district court would have imposed the same sentence without the
error.” United States v. Williams, 456 F.3d 1353, 1360 (11th Cir. 2006). We need
not address Vita’s alleged Guidelines errors because it is clear that, even if the
court erred as Vita alleged, any error was harmless. Vita is subject to a mandatory
minimum sentence of 240 months’ imprisonment pursuant to 21 U.S.C.
§ 841(b)(1)(A) regardless of the district court’s Guidelines calculation.1
AFFIRMED.
1
We note that Vita does not argue his sentence is unreasonable.
4