[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 31, 2007
No. 05-16177 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-60168-CR-PCH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GEORGE DANIEL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 31, 2007)
Before TJOFLAT, ANDERSON and BLACK, Circuit Judges.
PER CURIAM:
George Daniel appeals his 96-month prison sentence, which was imposed
on him for re-entering the United States of America as an alien who had been
previously removed subsequent to a conviction for commission of an aggravated
felony, in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). The district court
found that Daniel had been convicted for possession with intent to distribute
narcotics prior to his deportation and, in accordance with the sentencing
guidelines, applied a 16 level enhancement to arrive at a sentencing range of 92-
115 months.
Responding to Daniel’s first appeal, we held that the district court may
determine, as a matter of law, the existence of a prior conviction and classify that
conviction without offending the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). See United States v. Daniel, 148
Fed.Appx. 833, 834-35 (11th Cir. 2005) (“An enhancement based on a prior
conviction under § 2L1.2(b)(1)(A)(i), even if not admitted by the defendant, does
not represent a constitutional Booker error”). See also United States v. Orduno-
Mireles, 405 F.3d 960, 962-63 (11th Cir. 2005); United States v. Camacho-
Ibarquen, 404 F.3d 1283, 1290 (11th Cir. 2005). We remanded to the district
court so that it could reconsider its sentence under an advisory guideline scheme.
Daniel, 148 Fed.Appx. at 836. On remand, the district court again sentenced
Daniel to 96 months. This appeal followed.
On appeal, Daniel argues that the district court lacked the authority to
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enhance his sentence beyond the statutory maximum based on the fact of a prior
conviction not proven to a jury beyond a reasonable doubt or expressly admitted
by him. He argues that the district court violated his Fifth and Sixth Amendment
rights because, although the grand jury indicted him for a violation of
§ 1326(b)(2), the underlying conviction was not listed in the indictment, and the
court sentenced him in excess of the two-year statutory maximum in § 1326(a)
solely on the court’s determination that his prior conviction was an aggravated
felony. Daniel concedes that his argument is foreclosed by our interpretation of
the Supreme Court’s decision in United States v. Almendarez-Torres, 523 U.S.
224, 118 S. Ct. 1219 (1998). See United States v. Marseille, 377 F.3d 1249, 1257-
58 (11th Cir. 2004); see also United States v. Martinez, 434 F.3d 1318, 1323 (11th
Cir. 2006); United States v. Greer, 440 F.3d 1267, 1273-74 (11th Cir. 2006).
As we have done with other defendants a number of times before, we reject
the argument advanced by Daniel because it is contrary to precedent from the
Supreme Court and this Circuit. That is the only issue raised on appeal.
Accordingly, Daniel’s 96-month sentence is
AFFIRMED.
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