United States v. Andrew Smith

Case: 11-14893 Date Filed: 11/01/2012 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________
No. 11-14893
Non-Argument Calendar
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D. C. Docket No. 9:11-cr-80111-DTKH-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDREW SMITH,
a.k.a. Lennox Cross,
a.k.a Lennoy Cross,
a.k.a. Paul Jones,
a.k.a. Garfield Thomas,
a.k.a. Biggs,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(November 1, 2012)
Before TJOFLAT, KRAVITCH and EDMONDSON, Circuit Judges.
Case: 11-14893 Date Filed: 11/01/2012 Page: 2 of 3
PER CURIAM:
Andrew Smith appeals his 30-month sentence for illegal reentry into
the United States following a previous deportation, in violation of 8 U.S.C. §
1326(a), (b)(2). On appeal, Smith contends that the district court erred by
imposing an enhanced sentence based on a felony conviction that was not set forth
in the indictment and not found by a jury beyond a reasonable doubt. He
recognizes that Almendarez–Torres v. United States, 523 U.S. 224, 118 S.Ct.
1219, 140 L.Ed.2d 350 (1998), decided that a prior conviction is not an element of
the offense under section 1326(b); but he argues that Apprendi v. New Jersey, 530
U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington,
542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) have called the validity of
Almendarez–Torres into question. We affirm Smith’s sentence.
We review constitutional sentencing issues de novo. United States v. Steed,
548 F.3d 961, 978 (11th Cir. 2008). In Almendarez–Torres, the Supreme Court
explained that a prior conviction used to enhance a sentence under section
1326(b)(2) is no element of the offense, and therefore, it need not be alleged in the
indictment or found by a jury beyond a reasonable doubt. Almendarez–Torres,
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Case: 11-14893 Date Filed: 11/01/2012 Page: 3 of 3
523 U.S. at 226-27, 118 S.Ct. at 1222. Although Apprendi and later decisions
might have cast doubt on the reasoning of Almendarez–Torres, we have repeatedly
explained that Almendarez–Torres remains binding precedent unless and until that
case is expressly overruled by the Supreme Court. Steed, 548 F.3d at 979-80;
United States v. Greer, 440 F.3d 1267, 1273-76 (11th Cir. 2006); United States v.
Gibson, 434 F.3d 1234, 1246-47 (11th Cir. 2006).
Smith’s argument that the district court erred by enhancing his sentence
based on an earlier conviction not charged in the indictment or proven to a jury
beyond a reasonable doubt is foreclosed by Almendarez–Torres. See
Almendarez–Torres, 523 U.S. at 226-27, 118 S.Ct. at 1222. Accordingly, we
affirm Smith’s sentence.
AFFIRMED.
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