United States v. Vicente Maldonado-Asencio

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-15344 MARCH 30, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 05-00122-CR-J-25-TEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICENTE MALDONADO-ASENCIO,
a.k.a. Felix Antonio Poso,
a.k.a. Edwin Maldonado-Poso,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 30, 2006)
Before TJOFLAT, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Vincente Maldonado-Asencio appeals the 70-month sentence imposed
following his guilty plea to unlawfully entering the United States, 8 U.S.C. § 1327.
Under U.S.S.G. § 2L1.2(b)(1)(A)(i), a defendant’s offense level is enhanced 16
levels if he was previously deported after conviction for a felony drug trafficking
offense for which a sentence of more than 13 months was imposed.
The § 2L1.2(b)(1)(A)(i)enhancement was applied in this case. Maldonado-
Asencio contends that it should not have been because, in his view, a prior
aggravated felony conviction is an element of the offense under 8 U.S.C. §
1362(B)(2). For that reason, he says, the sentence imposed unconstitutionally
exceeds the statutory maximum for the offense based on the facts admitted by him
or charged in the indictment.
Maldonado-Asencio’s position is precluded by Almendarez-Torres v. United
States, 523 U.S. 224, 247, 118 S. Ct. 1219, 1233, 140 L.E.2d 350 (1999), and our
many decisions attesting to that decision’s continuing validity and applying it. See
United States v. Greer, 2006 WL 435662, *5-6, ___ F.3d ___, ___ (11th Cir. Feb.
24, 2006) (“As we have said several times, unless and until the Supreme Court
specifically overrules Almendarez-Torres, we will continue to follow it.”); United
States v. Camacho-Ibarquen, 410 F.3d 1307, 1316 n. 3 (11th Cir.2005) (“[T]he
Supreme Court has not explicitly overruled Almendarez-Torres. As a result, we
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must follow Almendarez-Torres.”); United States v. Burge, 407 F.3d 1183, 1188
(11th Cir.), cert. denied, 126 S. Ct. 551 (2005); United States v. Shelton, 400 F.3d
1325, 1329 (11th Cir.2005); United States v. Orduno-Mireles, 405 F.3d 960, 962
(11th Cir.), cert. denied, 126 S. Ct. 223 (2005); United States v. Marseille, 377
F.3d 1249, 1257-58 (11th Cir.2004); United States v. Guadamuz-Solis, 232 F.3d
1363 (11th Cir.2000) (“Almendarez-Torres remains the law until the Supreme
Court determines that Almendarez-Torres is not controlling precedent.”); United
States v. Miles, 290 F.3d 1341, 1348 (11th Cir.2002). The facts of this case are not
materially distinguishable from the facts of those cases. A prior conviction is not
an element of the offense under 8 U.S.C. § 1326(b)(2), regardless of whether the
defendant admits to it.
AFFIRMED.
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