United States v. Guzman-Resendez

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 21, 2006
• Docket: 05-40928
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 21, 2006

Charles R. Fulbruge III Clerk No. 05-40928 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ELROY GUZMAN-RESENDEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas (1:04-CR-139) --------------------

Before KING, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Elroy Guzman-Resendez (Guzman) appeals the

sentence imposed following his guilty plea for possession with

intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1).

The district court sentenced Guzman to 151 months of imprisonment

and three years of supervised release.

Guzman asserts that his Sixth Amendment rights were violated

when the district court determined the necessary facts to qualify

him for a career offender enhancement under U.S.S.G. § 4B1.1 by a

*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. preponderance of the evidence rather than beyond a reasonable

doubt. Guzman’s argument is foreclosed by our decision in United

States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, 126 S.

Ct. 43 (2005). Post-Booker, “[t]he sentencing judge is entitled to

find by a preponderance of the evidence all the facts relevant to

the determination of a Guideline sentencing range and all facts

relevant to the determination of a non-Guidelines sentence.” Id.

Additionally, we have held that “[t]here is no Sixth Amendment

violation with respect to post-trial consideration of career

offender status.” United States v. Guevara, 408 F.3d 252, 261 (5th

Cir. 2005), cert. denied, 126 S. Ct. 1080 (2006). Aside from

Guzman’s age, which he admitted at his rearraignment hearing, the

determinations made in the course of a career offender

classification are all questions of law. Id. at 261.

Guzman also contends that, because § 4B1.1 uses the same adult

felony controlled substance convictions to increase his base

offense level and his criminal history category, the result is

impermissible double counting. The Guidelines do not contain a

general prohibition against double counting. See United States v.

Calbat, 266 F.3d 358, 364 (5th Cir. 2001). It is prohibited only

if the particular guideline at issue expressly forbids double

counting. Id. And, § 4B1.1 does not do so. Additionally, we have

stated that “double counting is legitimate where a single act is

relevant to two dimensions of the Guidelines analysis,” such as

using a prior conviction to determine the defendant’s base offense

2 level and criminal history. United States v. Kings, 981 F.2d 790,

796-97 (5th Cir. 1993).

Guzman further insists that his sentence is unreasonable. The

district court fulfilled its duty to consider all of the 18 U.S.C.

§ 3553 factors and sentenced Guzman to 151 months of imprisonment,

which was the low end of the sentencing range. See United States

v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, 126 S. Ct. 43

(2005). This sentence is within the properly calculated advisory

Guidelines range and is presumptively reasonable. United States v.

Alonzo, 435 F.3d 551, 554-55 (5th Cir. 2006). There is no

indication that the sentence imposed was unreasonable. See Mares,

402 F.3d at 519.

The district court’s judgment is

AFFIRMED.