Case: 13-13034 Date Filed: 12/04/2013 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-13034
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-20035-JAL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS ALBERTO VARELA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(December 4, 2013)
Before TJOFLAT, WILSON and JORDAN, Circuit Judges.
PER CURIAM:
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Carlos Alberto Varela appeals his 120-month sentence, imposed after he
pled guilty to conspiracy to possess with intent to distribute 500 grams or more of
cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(ii), and 846. The
statutory minimum sentence applicable to Varela increased from five to ten years’
imprisonment because of a prior felony drug conviction. 21 U.S.C. § 841(b)(1)(B).
This conviction was not included in the government’s indictment.
Varela argues on appeal that the fact of his prior conviction needed to be
included in the indictment because it was used to elevate his statutory minimum
sentence. He concedes, however, that his argument is foreclosed by the Supreme
Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct.
1219 (1998).
In Almendarez-Torres, the Supreme Court held that the fact of a prior
conviction is not an element of the offense that needs to be proven beyond a
reasonable. Almendarez-Torres, 523 U.S. at 239–40, 118 S. Ct. at 1228–29. We
have previously noted that until the Supreme Court specifically overrules itself, we
are bound by Almendarez-Torres. United States v. Greer, 440 F.3d 1267, 1273
(11th Cir. 2006).
A defendant who is found guilty of conspiring to possess with intent to
distribute 500 grams or more of a mixture containing cocaine ordinarily faces a
statutory sentencing range of five to forty years. See 21 U.S.C. § 841(b)(1)(B).
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However, if a defendant commits the same offense after having been convicted for
a felony drug offense, he faces a statutory sentencing range of ten years to life
imprisonment. 21 U.S.C. § 841(b)(1)(B).
Varela correctly concedes that Almendarez-Torres forecloses his argument
on appeal. The Supreme Court has not overruled Almendarez-Torres. See Alleyne,
570 U.S. at ___ n.1, 133 S.Ct. at 2160 n.1 (stating that the Court’s decision in
Almendarez-Torres was not being revisited). Accordingly, it remains binding
precedent. See Greer, 440 F.3d at 1273. We therefore affirm Varela’s sentence.
AFFIRMED.
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