[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
MAY 19, 2011
No. 10-13377 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 9:09-cr-80126-KLR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDGAR GUITTEREZ-GONZALEZ,
a.k.a. Edgar Guitterez,
a.k.a. Edgar Gonzalez,
a.k.a. Fredy Maldonado,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 19, 2011)
Before HULL, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Edgar Guitterez-Gonzalez appeals his 77-month sentence, imposed after he
pleaded guilty to one count of illegal reentry of a deported alien in violation of 8
U.S.C. § 1326(a) and (b)(2). On appeal, Guitterez-Gonzalez argues that the court
violated his Fifth and Sixth Amendment rights in calculating his recommended
guidelines sentence by imposing a 16-level enhancement on the basis of prior
convictions that were neither alleged in the indictment nor proved to a jury, citing
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). He acknowledges that his argument is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), and
United States v. Orduno-Mireles, 405 F.3d 960 (11th Cir. 2005), but he asserts the
issue to preserve it for possible review by the Supreme Court.
This Court reviews constitutional sentencing issues de novo. United States
v. Steed, 548 F.3d 961, 978 (11th Cir. 2008). We will reverse the district court
only if it committed a harmful error. United States v. Paz, 405 F.3d 946, 948 (11th
Cir. 2005).
In Almendarez-Torres, the Supreme Court held the government need not
allege prior convictions in its indictment, nor prove these convictions beyond a
reasonable doubt, for a district court to use the convictions to enhance a sentence
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by increasing the maximum available sentence as allowed under 8 U.S.C.
§ 1326(b)(2). 523 U.S. at 226-27, 118 S. Ct. at 1222. In Apprendi, the Supreme
Court declined to revisit Almendarez-Torres, ruling that, “[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” Apprendi, 530 U.S. at 489-490, 120 S. Ct. at 2362-63; see also
United States v. Booker, 543 U.S. 220, 244, 125 S. Ct. 738, 756, 160 L. Ed. 2d 621
(2005) (“Any fact (other than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts established by a plea of
guilty or a jury verdict must be admitted by the defendant or proved to a jury
beyond a reasonable doubt.”). This Court has explained that it remains bound by
Almendarez-Torres unless the Supreme Court expressly overrules it. United
States v. Steed, 548 F.3d 961, 979-80 (11th Cir. 2008); 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).
Upon review of the record and consideration of the parties’ briefs, we
affirm. Guitterez-Gonzalez’s argument that the district court erred by enhancing
his sentence based on convictions not alleged in the indictment nor found by a jury
is foreclosed by Almendarez-Torres, which explained that a prior conviction need
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not be alleged in the indictment nor proved to a jury even if the conviction serves
as the basis for enhancing a sentence by increasing the maximum available term of
imprisonment. See Almendarez-Torres, 523 U.S. at 226-27, 118 S. Ct. at 1222.
Because Guitterez-Gonzalez challenges only the use of a prior conviction in
calculating his guidelines range, and does not challenge the use of the conviction
to increase his maximum possible sentence (as the petitioner in Almendarez-
Torres did), the holding that the government need not allege the prior convictions
nor prove them to a jury applies with even greater force here. Guitterez-Gonzalez
misplaces his confidence in Apprendi and Blakely, which left Almendarez-Torres
“undisturbed.” United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005).
The district court did not err by imposing the 16-level enhancement under U.S.
Sentencing Guidelines Manual § 2L1.2(b)(1)(A) based on Guitterez-Gonzalez’s
prior convictions.
AFFIRMED.
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