Case: 13-11932 Date Filed: 12/30/2013 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-11932
Non-Argument Calendar
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D.C. Docket No. 9:11-cr-80188-DTKH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL ANGEL HERNANDEZ-ABRAHAM,
a.k.a. Miguel Hernandez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(December 30, 2013)
Before PRYOR, MARTIN, and FAY, Circuit Judges.
PER CURIAM:
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Miguel Hernandez-Abraham appeals his 77-month sentence after pleading
guilty to one count of illegal reentry into the United States after having been
deported, in violation of 8 U.S.C. § 1326(a), (b)(2). On appeal, he argues the
district judge lacked authority to increase his sentence, based upon prior
convictions that were neither charged in the indictment nor proved to a jury beyond
a reasonable doubt. We affirm.
We review constitutional sentencing issues de novo. United States v. Steed,
548 F.3d 961, 978 (11th Cir. 2008) (per curiam). In Almendarez-Torres v. United
States, 523 U.S. 224, 226-27, 118 S. Ct. 1219, 1222 (1998), the Supreme Court
held the government does not need to prove beyond a reasonable doubt a defendant
had prior convictions or allege those prior convictions in the indictment in order to
use them to enhance a defendant’s sentence under a federal statute. Although the
Supreme Court has since expressed some doubt as to whether Almendarez-Torres
was correctly decided, it has explicitly declined to revisit that decision. Apprendi
v. New Jersey, 530 U.S. 466, 489-90, 120 S. Ct. 2348, 2362 (2000); see also
Alleyne v. United States, 133 S. Ct. 2151, 2160 n.1 (2013) (declining to revisit
Almendarez-Torres, because the parties did not contest that decision). Rather, the
Supreme Court has maintained, “[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory maximum
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must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi,
530 U.S. at 490, 120 S. Ct. at 2362-63.
Furthermore, we since have held Apprendi did not overrule
Almendarez-Torres. United States v. Beckles, 565 F.3d 832, 846 (11th Cir. 2009);
United States v. Gibson, 434 F.3d 1234, 1246-47 (11th Cir. 2006). We have also
recognized that we are “bound to follow Almendarez-Torres unless and until the
Supreme Court itself overrules that decision.” United States v. Thomas, 242 F.3d
1028, 1035 (11th Cir. 2001). Because Hernandez-Abraham concedes binding
precedent forecloses his argument, the district judge erred by enhancing his
sentence based on prior convictions not charged in the indictment or proved to a
jury beyond a reasonable doubt.
AFFIRMED.
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