[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 19, 2006
No. 05-14438 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-60066-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
URBANO VELASCO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 19, 2006)
Before ANDERSON, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Urbano Velasco appeals his 37-month sentence, imposed for unlawful re-
entry after deportation, alleging that the district court’s enhancement of the
sentence above the two-year statutory maximum for unlawful reentry, based upon
his prior conviction for possession of cocaine with intent to distribute, is
unconstitutional. On appeal, Velasco argues that, following its decision in Shepard
v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), a majority
of the Supreme Court now would decline to reaffirm Alemendarez-Torres v.
United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), in which the
Supreme Court held that a prior conviction is not a fact which must be admitted by
defendant or found by a jury beyond a reasonable doubt.
Because Velasco preserved the issue below, we review de novo the
constitutional challenge to his sentence. United States v. Paz, 405 F.3d 946, 948
(11th Cir. 2005).
The maximum statutory sentence for unlawful re-entry is 2 years. 8 U.S.C.
§ 1326(a). However, where a defendant was deported subsequent to a conviction
for an aggravated felony, the statutory maximum is 20 years. 8 U.S.C. §
1326(b)(2). A drug trafficking crime is considered an “aggravated felony” for
purposes of § 1326(b)(2). See 8 U.S.C. § 1101(a)(43)(B).
In Almendarez-Torres, the Supreme Court held that a prior conviction is not
a fact which must be admitted by a defendant or found by a jury beyond a
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reasonable doubt. 523 U.S. at 230, 118 S.Ct. at 1219. In its subsequent decisions
in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000),
as well as Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403
(2004) and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed2d 621
(2005), the Supreme Court reaffirmed the holding in Almendarez-Torres. See
United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005). In Apprendi, the
Court held that “[o]ther 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.” Apprendi, 530 U.S. at
490, 120 S.Ct. at 2362-63 (emphasis added). The Court revisited Apprendi in
Blakely v. Washington, clarifying “that the ‘statutory maximum’ for Apprendi
purposes is the maximum sentence a judge may impose solely on the basis of the
facts reflected in the jury verdict or admitted by the defendant[;]” it did not disturb
Apprendi’s exception for prior convictions. Blakely v. Washington, 542 U.S. at
303, 124 S.Ct. at 2537 (emphasis in original). Subsequently, in Booker, the Court
held that Blakely applied to the Federal Sentencing Guidelines and reaffirmed its
holding in Apprendi. 543 U.S. at 243-44, 125 S.Ct. at 755-56.
Shortly after handing down its decision in Booker, the Supreme Court
decided Shepard, upon which Velasco mounts his argument. In Shepard, the
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Supreme Court limited the types of evidence a district court can constitutionally
consider to determine whether a prior burglary conviction qualifies as a violent
felony for purposes of the Armed Career Criminal Act (“ACCA”) where the
statutory definition of burglary includes both violent and non-violent conduct.
Shepard, 544 U.S. at __, 125 S.Ct. at 1257. A plurality of the Court explained
that, while a dispute over whether a burglary was a violent felony for purpose of
the ACCA could be “described as a fact about a prior conviction, it [was] too far
removed from the conclusive significance of a prior judicial record, and too much
like the findings subject to Jones [v. United States, 526 U.S. 227, 119 S.Ct. 1215,
143 L.Ed.2d 311 (1999)] and Apprendi to say that Almendarez-Torres clearly
authorizes a judge to resolve the dispute.” Id. at ___, 125 S.Ct. at 1262.
Since Shepard, we have consistently held that Almendarez-Torres remains
good 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. 233 (2005). See also United States v. Camacho-
Ibarquen, 410 F.3d 1307, 1316 n.3 (11th Cir.), cert. denied, 126 S.Ct. 457
(2005)(“Although recent decisions, including Shepard . . . , may arguably cast
doubt on the future prospects of Almendarez-Torres’s holding regarding prior
convictions, the Supreme Court has not explicitly overruled Almendarez-Torres.
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As a result, we must follow Almendarez-Torres.”)(citations omitted); United States
v. Cantellano, 430 F.3d at 1142, 1147 (11th Cir. 2005)(“The fact of a prior
conviction clearly may be found by the district court.”); Shelton, 400 F.3d at 1329
(“[A] district court does not err by relying on prior convictions to enhance a
defendant’s sentence.”).
Furthermore, the district court here, unlike in Shepard, did not resolve any
undisputed facts. Velasco conceded at both the plea colloquy and the sentencing
hearing that he had a prior conviction for possession of cocaine with intent to
distribute. Moreover, at the plea colloquy, he stated that he understood he faced a
maximum penalty of 20 years’ imprisonment. Thus, the district court made no
findings of the sort about which the plurality warned in Shepard. See Shepard, 544
U.S. at ___, 125 S.Ct. at 1262.
Upon review of the presentence investigation report, the sentencing
transcript, and the parties’ briefs, we find no error.
AFFIRMED.
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