[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-11120 JANUARY 25, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00333-CR-T-26-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIN SILVA,
a.k.a. Martin Silvestre Ruis,
a.k.a. Martin Silva-Gomez,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 25, 2006)
Before CARNES, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Martin Silva appeals his conviction and 41-month sentence for unlawful re-
entry into the United States by a previously-deported convicted felon, in violation
of 8 U.S.C. § 1326. We find no merit to the four arguments Silva makes on
appeal.
First, we reject Silva’s argument that 8 U.S.C. § 1326 is unconstitutional as
it relates to aliens who previously have committed an aggravated felony. This
court has repeatedly upheld the continuing validity of Almendarez-Torres v.
United States, 523 U.S. 224, (1998) which carved out an exception for recidivism
to the rule that the government must plead and prove facts to enhance convictions.
See United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005); United States
v. Camacho-Ibarquen, 410 F.3d 1307 (11th Cir.), cert. denied, 126 S.Ct. 457
(2005).
Second, we reject Silva’s argument, made for the first time on appeal, that
because he committed his offense while the guidelines were mandatory, ex post
facto principles required that his sentence not be higher than the constitutionally
applied maximum of the guideline range, based only on facts that were alleged in
the indictment and admitted by him at the plea hearing. We have previously
addressed and rejected this argument in United States v. Duncan, 400 F.3d 1297,
1307-1308 (11th Cir.) cert. denied, 126 S.Ct. 432 (2005).
2
Third, we find meritless Silva’s argument that the enhanced maximum
penalty prescribed by § 1326 (b) for aliens who have committed an aggravated
penalty violates or otherwise implicates the Double Jeopardy Clause of the
Constitution. We have stated that consideration of prior convictions as relevant
conduct in calculating a guideline sentence does not violate the Double Jeopardy
Clause. See United States v. Fuentes, 107 F.3d 1515, 1522 (11th Cir. 1997).
Moreover, the Supreme Court specifically held, in Almendarez-Torres, that §
1326(b) is a penalty provision, authorizing a court to increase the sentence for a
recidivist, but does not define a separate crime.
Finally, we do not find that Silva’s sentence was unreasonable under the 18
U.S.C. § 3553(a). 1 A sentencing court must consider the factors found in 18
U.S.C. § 3553(a):
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need for the sentence imposed
- (A) to reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense; (B) to afford
adequate deterrence to criminal conduct; (C) to protect the public
from further crimes of the defendant; and (D) to provide the defendant
with needed educational or vocational training, medical care, or other
correctional treatment in the most effective manner; (3) the kinds of
sentences available; (4) the kinds of sentence and the sentencing range
established . . . [from the Guidelines]; and (5) any pertinent policy
1
We reject the government’s argument that this court lacks jurisdiction to entertain Silva;s
argument that the sentence imposed was unreasonable. See United States v. Martinez, No. 05-
12706, 2006 WL 39541 (11th Cir. Jan. 9, 2006).
3
statement . . . issued by the Sentencing Commission . . . .
We find that the sentence in this case was not unreasonable under the facts of this
case.
AFFIRMED.
4