United States v. Martin Acosta-Sanchez , 156 F. App'x 152 ( 2005 )


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  •                                                             [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    FILED
    ________________________        U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    No. 05-11657                   November 23, 2005
    Non-Argument Calendar            THOMAS K. KAHN
    ________________________                 CLERK
    D. C. Docket No. 04-60285-CR-WJZ
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    MARTIN ACOSTA-SANCHEZ,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    _________________________
    (November 23, 2005)
    Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.
    PER CURIAM:
    Martin Acosta-Sanchez appeals his 48-month sentence for illegal reentry into
    the United States after deportation. 
    8 U.S.C. § 1326
    . The maximum sentence under
    § 1326(a) is two years, but the maximum sentence increases to twenty years under
    § 1326(b)(2) if the defendant was deported after a conviction for an aggravated
    felony. The district court relied on Acosta-Sanchez’s prior conviction to sentence
    him in excess of the two-year statutory maximum provided in § 1326(a). Acosta-
    Sanchez argues that, in light of the Supreme Court’s decision in Apprendi v. New
    Jersey, 
    530 U.S. 466
    , 
    120 S.Ct. 2348
    , 
    147 L.Ed.2d 435
     (2000) and its progeny, his
    sentence is illegal because the government failed to allege the prior conviction in the
    indictment. Acosta-Sanchez asserts that his prior conviction should have been treated
    as an element of the offense and included in the indictment.
    Acosta-Sanchez concedes that this issue has been resolved against him by the
    United States Supreme Court in Almendarez-Torres v. United States, 
    523 U.S. 224
    ,
    
    118 S.Ct. 1219
    , 
    140 L.Ed.2d 350
     (1998). Nevertheless, he contends that the Court’s
    statement in Apprendi that it is “arguable that Almendarez-Torres was incorrectly
    decided,” suggests that Almendarez-Torres may soon be overruled. He asserts that
    the Court’s decisions in Blakely v. Washington, 
    542 U.S. 296
    , 
    124 S.Ct. 2531
    , 
    159 L.Ed.2d 403
     (2004), United States v. Booker, 543 U.S. ___, 
    125 S.Ct. 738
    , 
    160 L.Ed.2d 621
     (2005), and United States v. Shepard, ___ U.S. ___, 
    125 S.Ct. 1254
    , 
    161 L.Ed.2d 205
     (2005), further undermine the rationale of Almendarez-Torres and call
    its continued validity into question.
    2
    Because Acosta-Sanchez objected in the district court to the government’s
    failure to allege his prior conviction in the indictment, we will review his claim de
    novo. United States v. Gallegos-Aguero, 
    409 F.3d 1274
    , 1276 (11th Cir. 2005);
    United States v. Candelario, 
    240 F.3d 1300
    , 1306 (11th Cir. 2001). In Almendarez-
    Torres the Supreme Court held that a defendant’s prior conviction in the context of
    the § 1326(b) increased-penalty provision is merely a sentencing factor that does not
    have to be submitted to the jury and proved beyond a reasonable doubt. 
    523 U.S. at 247
    , 
    118 S.Ct. at 1233
    . The Court later held in Apprendi that “[o]ther than 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.” 
    530 U.S. at 490
    , 
    120 S.Ct. at 2362-63
    . The Supreme Court also stated that
    "we need not revisit [Almendarez-Torres] for purposes of our decision today to treat
    the case as a narrow exception to the general rule." Apprendi, 
    530 U.S. at 490
    , 
    120 S.Ct. at 2362
    .
    After Apprendi was issued, we considered its effect on Almendarez-Torres and
    whether the government must allege a defendant’s prior conviction in the indictment
    in order for the court to sentence him under the increased maximum penalty provision
    of § 1362(b)(2). United States v. Guadamuz-Solis, 
    232 F.3d 1363
    , 1363 (11th Cir.
    2000). In upholding a defendant’s sentence under circumstances similar to this case,
    3
    we held that “Almendarez-Torres remains the law until the Supreme Court determines
    that Almendarez-Torres is not controlling precedent.” 
    Id.
     We recently revisited this
    issue, taking into consideration the effect of the Booker and Blakely decisions on
    Almendarez-Torres, and reached the same conclusion, namely, that “[the holding of
    Almendarez-Torres] was left undisturbed by Apprendi, Blakely, and Booker.” United
    States v. Shelton, 
    400 F.3d 1325
    , 1329 (11th Cir. 2005). In another recent case, we
    addressed the issue in light of Shepard and held that “the Supreme Court has not
    explicitly overruled Almendarez-Torres. As a result, we must follow Almendarez-
    Torres.” United States v. Camacho-Ibarquen, 
    410 F.3d 1307
    , 1316 n.3 (11th Cir.
    2005).
    We find no reversible error. As Acosta-Sanchez acknowledges in his brief,
    Almendarez-Torres controls this case. Because the government is not required to
    allege a defendant’s prior conviction in the indictment before he may be sentenced
    to an enhanced statutory maximum under 
    8 U.S.C. § 1326
    (b)(2), Acosta-Sanchez’s
    argument is without merit.
    AFFIRMED.1
    1
    Acosta-Sanchez’s request for oral argument is denied.
    4