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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-11986
Non-Argument Calendar
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D.C. Docket No. 3:11-cr-00199-HLA-JRK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WINSTON WILFRED JONES,
a.k.a. Michael W. Frazer,
a.k.a. Mark Michael Jones, Jr.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(February 26, 2015)
Before ROSENBAUM, JULIE CARNES, and FAY, Circuit Judges.
PER CURIAM:
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Winston Jones appeals his 36-month sentence of imprisonment, imposed
after he pled guilty to being unlawfully present in the United States following
removal, in violation of 8 U.S.C. § 1326(a). He argues that the district court erred
by increasing the statutory maximum sentence based upon a prior aggravated
felony conviction that was neither charged in the indictment nor proven beyond a
reasonable doubt. Because Jones’s challenged is foreclosed by precedent, we
affirm.
We generally review constitutional sentencing issues de novo. United States
v. Harris, 741 F.3d 1245, 1248 (11th Cir. 2014).
An alien who enters or is found in the United States illegally after previously
having been deported is subject to a maximum of two years’ imprisonment. 8
U.S.C. § 1326(a). If the defendant’s removal occurred after a conviction for an
aggravated felony, however, the statutory maximum increases to twenty years’
imprisonment. Id. § 1326(b)(2).
In Almendarez-Torres v United States, 523 U.S. 224, 118 S. Ct. 1219,
(1998), the Supreme Court held that a prior conviction “relevant only to the
sentencing of an offender found guilty of the charged crime” does not have to be
charged in an indictment or proven beyond a reasonable doubt to a jury, even if it
increases the defendant’s maximum statutory sentence. Id. at 228-47, 118 S. Ct. at
1223-33. The Court concluded that subsection (b)(2) of § 1326 was intended by
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Congress to be a such a “sentencing factor” and not an element of the offense that
needed to be charged in the indictment or proven beyond a reasonable doubt. Id. at
235, 118 S. Ct. at 1226.
Two years later, the Supreme Court held that any “facts that increase the
prescribed range of penalties to which a criminal defendant is exposed” are
elements of the crime. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct.
2348, 2362-63 (2000) (quotation marks omitted) (concerning statutory maximum
penalties). But the Court also carved out an exception for prior convictions
covered by Almendarez-Torres, despite acknowledging that it was “arguable that
Almendarez-Torres was incorrectly decided.” Id. at 489-90, 120 S. Ct. at 2362-63
(“Other 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.”).
Recently, the Supreme Court, consistent with Apprendi, held that “[a]ny fact
that, by law, increases the penalty for a crime is an ‘element’ that must be
submitted to the jury and found beyond a reasonable doubt.” Alleyne v. United
States, 570 U.S. __, __, 133 S. Ct. 2151, 2155 (2013) (concerning mandatory
minimum sentences). Nevertheless, the Court also noted specifically that it was
not at that time revisiting Almendarez-Torres’s “narrow exception” for the fact of a
prior conviction. Id. at __, 133 S. Ct. at 2160 n.1.
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Turning to this Court’s precedent, we have specifically stated that we are
“bound by Almendarez-Torres until it is explicitly overruled by the Supreme
Court.” United States v. Dowd, 451 F.3d 1244, 1253 (11th Cir. 2006); United
States v. Thomas, 242 F.3d 1028, 1035 (11th Cir. 2001) (“[W]e are bound to
follow Almendarez-Torres unless and until the Supreme Court itself overrules that
decision.”). After Alleyne was decided, we recognized that there was “some
tension between Almendarez-Torres on the one hand and Alleyne and Apprendi on
the other,” but we again concluded that “we are not free to do what the Supreme
Court declined to do in Alleyne, which is overrule Almendarez-Torres.” United
States v. Harris, 741 F.3d 1245, 1250 (11th Cir. 2014).
Nevertheless, Jones argues that Almendarez-Torres has been “gravely
wounded” by subsequent Supreme Court decisions and asserts that we need not
follow that decision because the facts of his case are distinguishable. See, e.g.,
Jefferson Cnty. v. Acker, 210 F.3d 1317, 1320 (11th Cir. 2001) (“But if the facts of
a gravely wounded Supreme Court decision do not line up closely with the facts
before us—if it cannot be said that decision ‘directly controls’ our case—then, we
are free to apply the reasoning in later Supreme Court decisions to the case at
hand.”). The crucial factual difference, Jones contends, is that the defendant in
Almendarez-Torres admitted the fact of his prior convictions at the plea hearing,
whereas Jones did not. But this Court has held that “the Supreme Court’s decision
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in Almendarez-Torres forecloses his argument that the existence of his prior
convictions needed to be admitted in his guilty plea or otherwise proven beyond a
reasonable doubt.” United States v. Overstreet, 713 F.3d 627, 635 (11th Cir.), cert.
denied, 134 S. Ct. 229 (2013). Accordingly, Almendarez-Torres applies to the
facts of Jones’s case.
Because we are bound by Almendarez-Torres until it is “explicitly
overruled” by the Supreme Court, the district court did not err in increasing Jones’s
statutory maximum based on a prior conviction not admitted in a guilty plea or
charged in the indictment. Overstreet, 713 F.3d at 635; Dowd, 451 F.3d at 1253.
Accordingly, we affirm Jones’s sentence.
AFFIRMED.
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