[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 14, 2006
No. 05-12573 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00013-CR-J-12HTS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WAYNE ANTHONY JOSEPH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 14, 2006)
Before BLACK, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Wayne Anthony Joseph appeals his sentence for illegal reentry after
deportation. 8 U.S.C. § 1326. The penalty for illegal reentry after deportation is
two years of imprisonment. Because Joseph was previously convicted of an
aggravated felony, he was sentenced to 57 months of imprisonment under section
1326(b)(2).
Joseph argues that his sentence is unconstitutional in the light of Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and its progeny. Joseph
concedes that under Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct.
1219, a previous conviction is a sentencing factor that need not be pleaded in the
indictment but argues that Almendarez-Torres has been repudiated by a majority of
the Supreme Court Justices and should not be followed. “We have held that
Almendarez-Torres remains the law until the Supreme Court determines that
Almendarez-Torres is not controlling precedent.” United States v. Orduno-Mireles,
405 F.3d 960, 963 (11th Cir.), cert. denied 126 S. Ct. 223 (2005) (internal
quotation marks and citation omitted). The sentence is
AFFIRMED.
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