[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 15, 2007
No. 06-14981 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-00772-CR-01-CC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ASUNCION LOZANO-LOZA,
a.k.a. Miguel Angel Ramirez,
a.k.a. Asuncion Lopez,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 15, 2007)
Before ANDERSON, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Asuncion Lozano-Loza appeals his 70-month sentence for illegal reentry
into the United States. See 18 U.S.C. § 1326. When the district court calculated
the applicable Sentencing Guidelines range, it imposed an enhancement based on a
prior felony conviction reported in the Presentence Investigation Report. See
United States Sentencing Guidelines § 2L1.2(b)(1)(A) (Nov. 2005). Lozano-Loza
argues that the enhancement is unconstitutional under United States v. Booker, 543
U.S. 220, 128 S. Ct. 738 (2005), because the prior conviction was not alleged in
the indictment or proved to a jury beyond a reasonable doubt. We affirm.
Because Lozano-Loza did not raise his objection before the district court, we
review for plain error. United States v. Raad, 406 F.3d 1322, 1323 (11th Cir.),
cert. denied, __ U.S. __, 126 S. Ct. 196 (2005).
Lozano-Loza’s argument is foreclosed by controlling authority. The
Supreme Court held in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.
Ct. 1219 (1998), that “the government need not allege in its indictment and need
not prove beyond a reasonable doubt that a defendant had prior convictions for a
district court to use those convictions for purposes of enhancing a sentence.”
United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005) (internal quotation
marks omitted). As Lozano-Loza concedes, we have held that “[t]his conclusion
was left undisturbed by Apprendi, Blakely, and Booker.” Id. “Almendarez-Torres
remains the law until the Supreme Court determines that Almendarez-Torres is not
2
controlling precedent.” United States v. Orduno-Mireles, 405 F.3d 960, 963 (11th
Cir. 2005) (internal quotation marks omitted).
Even if Almendarez-Torres were not controlling precedent, we would
conclude that there was no error because Lozano-Loza admitted to the existence of
his prior felony conviction. The conviction was reported as fact in the PSI, and
Lozano-Loza raised no objection. See Shelton, 400 F.3d at 1330 (facts alleged in
the PSI and not challenged by defendant are deemed admitted).
Lozano-Loza’s sentence is
AFFIRMED.
3