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

[DO NOT PUBLISH]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.
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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,
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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