United States v. Otis O'Brien Fearon

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 29, 2009
No. 08-16830 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-60162-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OTIS O'BRIEN FEARON,
a.k.a. Brien Fearon,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 29, 2009)
Before DUBINA, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Appellant Otis Fearon appeals his 41-month sentence for illegally reentering
the United States after deportation as a convicted felon, in violation of 8 U.S.C.
§§ 1326(a) and (b)(2). Fearon argues that the 16-level increase to his offense level,
added for his prior felony convictions under U.S.S.G. § 2L1.1(b)(1)(A), violates his
Fifth and Sixth Amendment rights that any aggravating sentencing fact be charged
in an indictment, submitted to a jury, and proven beyond a reasonable doubt.
We review de novo constitutional challenges to a sentence. United States v.
Cantellano, 430 F.3d 1142, 1144 (11th Cir. 2005).
In Almendarez-Torres, 523 U.S. 224, 226-227, 118 S. Ct. 1219, 1222, 140 L.
Ed. 2d 350 (1998), the Supreme Court held that prior convictions need not be
charged in the present indictment to support sentence enhancements. We held, in
United States v. Thomas, 242 F.3d 1028 (11 th Cir. 2001), that we are “bound to
follow Almendarez-Torres unless and until the Supreme Court itself overrules that
decision.” Id. at 1035.
Based on binding precedent from the Supreme Court and our court, we
conclude that the district court did not err in imposing the enhancement.
Accordingly, we affirm Fearon’s sentence.
AFFIRMED.
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