# United States v. Jose Vita

> Court of Appeals for the Eleventh Circuit · October 24, 2006 · 203 F. App'x 973

URL: https://www.frixlaw.com/law-library/cases/45089

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Jose VITA, Defendant-Appellant
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** October 24, 2006
- **Citations:** 203 F. App'x 973
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Black, Marcus, Per Curiam, Wilson
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

[DO NOT PUBLISH]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.

3
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/45089. Public record. Not legal advice.