[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 22, 2005
No. 05-10772 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-60243-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MELVIN NOLASCO,
a.k.a. Marbien Dias,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 22, 2005)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
A federal grand jury indicted Melvin Nolasco, charging him with illegally
entering the United States after having previously been deported, in violation of 8
U.S.C. §§ 1326(a) and (b)(2). Nolasco pled guilty without the benefit of a plea
agreement. During the plea colloquy, Nolasco admitted that he is a citizen of
Honduras, that he was previously convicted of second degree rape in a Maryland
state court and was deported as a result, and that he later reentered the United
States without permission. Nolasco further stated that he understood the potential
penalties he faced for his violation, including a statutory maximum twenty years’
imprisonment. The district court found Nolasco’s plea to be freely and voluntarily
given, accepted the plea, and sentenced him to 41 months imprisonment, two years
supervised release, and a one hundred dollar special assessment. The district court
enhanced Nolasco’s sentence based upon his previous deportation for a crime of
violence. Nolasco now appeals this sentence.
Because this case involves a preserved claim of constitutional error in
sentencing, we review it de novo. See United States v. Gallegos-Aguero, 409 F.3d
1274, 1276 (11th Cir. 2005) (per curiam).
Nolasco argues that the district court could not impose a sentence that
exceeded the two year statutory maximum penalty for illegally reentering the
United States provided for in 8 U.S.C. § 1326(a). He contends that the district
court could not properly consider his prior conviction in applying the twenty year
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statutory maximum penalty for illegally reentering the United States when prior
removal was “subsequent to a conviction for commission of an aggravated felony”
provided for in 8 U.S.C. § 1326(b)(2). Nolasco bases this assertion on the fact
that, although the government referenced 8 U.S.C. § 1326(b)(2) in its indictment, it
did not expressly allege that Nolasco was formerly removed subsequent to an
aggravated felony conviction. The United States Supreme Court, however, as
Nolasco concedes, has directly rejected this argument.
In Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct.
1219, 1222 (1998), the Supreme Court considered this same issue and held that 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.”
Accordingly, under Almendarez-Torres, the district court was permitted to rely on
Nolasco’s prior conviction of second degree rape in imposing a sentence that fell
within 8 U.S.C. § 1326(b)(2) rather than within 8 U.S.C. § 1326(a).
Nolasco suggests that decisions subsequent to Almendarez-Torres, such as
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000);
Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); and
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Shepard v. United States, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), indicate that the
majority of the Supreme Court may no longer agree with Almendarez-Torres. We
have recently held, however, that, while recent case law may have cast
Almendarez-Torres into doubt, until the Supreme Court explicitly overrules it, it is
still law that is binding upon this Court. United States v. Camacho-Ibarquen, 410
F.3d 1307, 1316 n.3 (11th Cir. 2005) (per curiam) (citations omitted); see also,
e.g., U.S. v. Orduno-Mireles, 405 F.3d 960, 963 (11th Cir. 2005) (citations
omitted).
Because the Supreme Court has not overruled Almendarez-Torres, it still
controls the outcome of this case. Accordingly, the district court committed no
error in considering Nolasco’s prior conviction of second degree rape in imposing
a sentence under 8 U.S.C. § 1326(b)(2) rather than within 8 U.S.C. § 1326(a).
Therefore, we AFFIRM.
AFFIRMED.
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