[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-16440 ELEVENTH CIRCUIT
OCTOBER 29, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-00256-CR-J-25TEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE FERNANDO MARTINEZ-CACERES,
a.k.a. Javier Diaz Sanchez,
a.k.a. Jose Fernando Martinez-Caseras,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 29, 2010)
Before EDMONDSON, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Jose Fernando Martinez-Caceres appeals his sentence for illegal reentry into
the United States following a previous deportation, in violation of 8 U.S.C. § 1326.
On appeal, Martinez-Caceres contends that the district court erred by imposing an
enhanced sentence based on a felony conviction that was not set forth in the
charging information. He recognizes that Almendarez-Torres v. United States, 523
U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) holds that a prior conviction is
not an element of the offense under 8 U.S.C. § 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 subsequent cases have called the validity of Almendarez-Torres into question.
He asserts that we should not apply Almendarez-Torres to the “distinguishable
facts” of his case. For the reasons stated below, we affirm Martinez-Caceres’s
sentence.
We review constitutional 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 8 U.S.C. § 1326(b)(2) is
not an 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,
523 U.S. at 226-27, 118 S.Ct. at 1222. Although Apprendi and subsequent
decisions have cast doubt on the reasoning of Almendarez-Torres, we have
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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).
Martinez-Caceres’s argument that the district court erred by enhancing his
sentence based on a prior conviction not charged in the information is foreclosed
by Almendarez-Torres. See Almendarez-Torres, 523 U.S. at 226-27, 118 S.Ct. at
1222. As noted above, Almendarez-Torres remains binding precedent in this
Circuit unless and until it is overruled by the Supreme Court. See Steed, 548 F.3d
at 979-80; Greer, 440 F.3d at 1273-76; Gibson, 434 F.3d at 1246-47. Although
Martinez-Caceres suggests that Almendarez-Torres is distinguishable, he does not
point to any differences between that case and his own. Almendarez-Torres
addressed the same legal question and the same statute that are at issue in this case.
See Almendarez-Torres, 523 U.S. at 226-27, 118 S.Ct. at 1222. Almendarez-
Torres is directly on point, and, under that decision, the district court did not err by
imposing an enhanced sentence based on a conviction not alleged in the
information. Accordingly, we affirm Martinez-Caceres’s sentence.
AFFIRMED.
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