[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12781 ELEVENTH CIRCUIT
Non-Argument Calendar JANUARY 7, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 3:09-cr-00362-HLA-JRK-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff - Appellee,
versus
JUAN VILLANUEVA-OCHOA,
a.k.a. Ramiro Zacarias-Ochoa,
lllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 7, 2011)
Before CARNES, HULL, and MARTIN, Circuit Judges.
PER CURIAM:
Juan Villanueva-Ochoa, a Mexican citizen, appeals his 46-month sentence
imposed after his conviction for illegal reentry of a deported alien, in violation of
8 U.S.C. § 1326. Villanueva-Ochoa had previously been deported following two
convictions for domestic battery—one of which included punching the pregnant
mother of his child in the stomach so hard that she suffered vaginal bleeding. The
district court enhanced Villanueva-Ochoa’s sentence under § 1326(b)(2) because
he had been previously deported following an aggravated felony. Villanueva-
Ochoa contends that the district court unconstitutionally erred when it enhanced
his sentence because his prior felony conviction was not alleged in the indictment
or admitted to during the plea hearing.
“We review de novo the constitutional challenges to a sentence.” United
States v. Cantellano, 430 F.3d 1142, 1144 (11th Cir. 2005). The Supreme Court
held in Almendarez-Torres v. United States that “subsection [8 U.S.C. 1326(b)(2)]
is a penalty provision, which simply authorizes a court to increase the sentence for
a recidivist. It does not define a separate crime. Consequently, neither the statute
nor the Constitution requires the Government to charge the factor that it mentions,
an earlier conviction, in the indictment.” 523 U.S. 224, 226–227, 118 S.Ct. 1219,
1222 (1998). Although Villanueva-Ochoa argues that the Supreme Court has cast
doubt on its reasoning in Almendarez-Torres, that decision has not been overruled.
See Apprendi v. New Jersey, 530 U.S. 466, 489, 120 S.Ct. 2348, 2362 (2000) ([I]t
2
is arguable that Almendarez-Torres was incorrectly decided”); but see id. at 490,
120 S.Ct. at 2362 (“Apprendi does not contest [Almendarez-Torres’] validity and
we need not revisit it for purposes of our decision today”). “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. Greer, 440
F.3d 1267, 1273 (11th Cir. 2006) (citing 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 must follow Almendarez-Torres.”);
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.”)).
AFFIRMED.
3