                                                             [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________
                                                                      FILED
                                                              U.S. COURT OF APPEALS
                                                                ELEVENTH CIRCUIT
                                   No. 05-11997
                                                                  January 6, 2006
                               Non-Argument Calendar
                                                                 THOMAS K. KAHN
                             ________________________                CLERK

                        D. C. Docket No. 04-60299-CR-WPD

UNITED STATES OF AMERICA,
                                                                    Plaintiff-Appellee,

                                        versus

MARK ROSE,
a.k.a. Neil Antonio Mills,

                                                                  Defendant-Appellant.

                             ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          _________________________

                                  (January 6, 2006)

Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:

      Defendant-appellant Mark Rose (“Rose”) appeals his forty-six month

sentence for illegal reentry into the United States after deportation, in violation of 8

U.S.C. §§ 1326(a) and (b)(2). After review, we affirm Rose’s sentence.
                                    I. BACKGROUND

       Prior to this case, Rose, a Jamaican national, had a federal drug conviction.

Specifically, in January 1999, in the United States District Court for the Middle

District of Florida, Rose pleaded guilty to possession with intent to distribute

cocaine. Rose was sentenced to thirty months’ imprisonment, and upon his release

from prison, he was immediately deported to Jamaica.

       On or about November 9, 2004, Rose illegally attempted to reenter the

United States. In late November 2004, a one-count indictment charged Rose with

illegal reentry into the United States, in violation of 8 U.S.C. §§ 1326(a) and

(b)(2).1 On January 20, 2005, Rose pleaded guilty to the charge without a written

plea agreement.

       The probation office prepared a Pre-Sentence Investigation report (“PSI”)

for Rose’s sentencing under the United States Sentencing Guidelines. The PSI set

Rose’s base offense level at eight. U.S.S.G. § 2L1.2. However, the PSI

recommended that Rose’s offense level be enhanced by sixteen levels, pursuant to



       1
         8 U.S.C. § 1326(a) provides that “[s]ubject to subsection (b),” any alien who is caught
illegally reentering the United States subsequent to a previous deportation is subject to a
maximum penalty of two years’ imprisonment. 8 U.S.C. § 1326(a). Further, 8 U.S.C. §
1326(b)(2) provides that if the alien’s previous removal was “subsequent to a conviction for
commission of an aggravated felony,” the alien is subject to a maximum of twenty years’
imprisonment. See 8 U.S.C. § 1326(b)(2). Rose’s 1999 drug conviction is a drug trafficking
crime and an aggravated felony for purposes of § 1326(b)(2). See 8 U.S.C. § 1101(a)(43)(B); 18
U.S.C. § 924(c)(2); 21 U.S.C. § 841.

                                               2
U.S.S.G. § 2L1.2(b)(1)(A), due to his reentry into the United States after “a

conviction for a felony that is . . . a drug trafficking offense for which the sentence

imposed exceeded 13 months.” U.S.S.G. § 2L1.2(b)(1)(A). The PSI noted that

Rose was arrested in 1998 for possession with intent to distribute cocaine; that he

was convicted on that charge upon his guilty plea; and that he was sentenced in

January 1999 to thirty months’ imprisonment.

      Finally, the PSI recommended that Rose’s offense level be reduced by three,

pursuant to U.S.S.G. §§ 3E1.1(a) and (b), for his acceptance of responsibility,

resulting in a total adjusted offense level of twenty-one. With a criminal history

category of III, Rose’s guidelines range was forty-six to fifty-seven months’

imprisonment.

      At his sentencing hearing, Rose never disputed the existence or the nature of

his prior conviction for possession with intent to distribute cocaine. Similarly,

during his plea colloquy, Rose conceded the accuracy of the prosecutor’s factual

proffer, including the fact of his prior conviction in the Middle District of Florida

for possession with intent to distribute cocaine.2 However, Rose did object to the

use of that 1999 conviction to enhance his sentence. Specifically, Rose’s counsel

objected because the “aggravated felony nature of the [1999] offense wasn’t



      2
          Rose also did not dispute the factual accuracy of the PSI.

                                                  3
charged in the Indictment.” Counsel repeated that his objection was “based on [the

conviction] not being charged in the Indictment.” Rose’s counsel argued that

although the Supreme Court held in Almendarez-Torres v. United States, 523 U.S.

224, 118 S. Ct. 1219 (1998) that the fact of a prior conviction does not need to be

alleged in an indictment nor proven to a jury beyond a reasonable doubt, the

Supreme Court arguably overruled Almendarez-Torres in Shepard v. United States,

544 U.S. __, 125 S. Ct. 1254 (2005).

        The district court overruled Rose’s objection and sentenced Rose to forty-six

months’ imprisonment. Rose timely appealed.

                                         II. DISCUSSION

        On appeal, Rose argues that his Fifth and Sixth Amendment rights were

violated because his prior drug conviction was not charged in the 2004 indictment

nor proven to a jury beyond a reasonable doubt.

                                     A. Standard of Review

        The parties dispute the applicable standard of review. Rose’s brief states

that plain-error review applies to both his Fifth and Sixth Amendment claims.3


        3
         We review a constitutional objection presented for the first time on appeal for plain
error. United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). For this Court to
reverse for plain error, there must be (1) error, (2) that is plain, (3) that affects substantial rights,
and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings.
United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied, 125 S. Ct. 2935
(2005).

                                                    4
Appellant Br. at 5. Interestingly, the government states that de novo review applies

to Rose’s Fifth Amendment claim regarding the prior conviction’s inclusion in the

indictment, but that plain-error review applies to Rose’s Sixth Amendment claim

regarding the district court’s authority to make findings of fact.4 Appellee Br. at 8.

We need not resolve the dispute, because Rose’s claims fail under either standard

of review.

                                         B. Analysis

       While Rose asserts that his Fifth and Sixth Amendment rights were violated,

he candidly admits that “this Court’s recent decisions effectively decide the issues

raised in this appeal.” Appellant Br. at 6. Rose further acknowledges that he only

“raises the issue[s] and preserves [them] for further attacks on his conviction and

sentence should the state of the law change.” Id.

       Our recent decisions do govern, and this Court has already held several

times that “‘Almendarez-Torres remains the law until the Supreme Court

[expressly] determines that Almendarez-Torres is not controlling precedent.’”

United States v. Orduno-Mireles, 405 F.3d 960, 963 (11th Cir.) (citation omitted),

cert. denied, 126 S. Ct. 223 (2005); see also United States v. Camacho-Ibarquen,



       4
       We review a constitutional objection that was timely raised in the district court de novo;
however, this Court will reverse only upon a finding of harmful error. United States v. Paz, 405
F.3d 946, 948 (11th Cir. 2005).

                                                5
410 F.3d 1307, 1316 n.3 (11th Cir.), cert. denied, 126 S. Ct. 457 (2005). This

Court has also concluded that Almendarez-Torres “was left undisturbed by

Apprendi, Blakely, and Booker.”5 United States v. Shelton, 400 F.3d 1325, 1329

(11th Cir. 2005); United States v. Burge, 407 F.3d 1183, 1188 (11th Cir.), cert.

denied, 126 S. Ct. 551 (2005); Orduno-Mireles, 405 F.3d at 962.

       In addition, the district court did not resolve any disputed facts related to

Rose’s prior conviction, and thus the Supreme Court’s decision in Shepard does

not change the result here. See Orduno-Mireles, 405 F.3d at 962 n.3 (rejecting

defendant’s argument that sixteen-level enhancement for prior conviction under

U.S.S.G. § 2L1.2(b)(1)(A) violated his Sixth Amendment rights, and holding that

because the district court did not resolve any “disputed facts related to the prior

conviction which were not adjudicated in the prior proceeding,” the “Supreme

Court’s recent decision in Shepard . . . does not change our analysis in this case”);

Camacho-Ibarquen, 410 F.3d at 1315-16 & n.3 (same).

       Rose has never disputed that he has a prior conviction in the Middle District

of Florida for possession with intent to distribute cocaine. As a matter of law,

Rose’s prior drug conviction is an aggravated felony for purposes of 8 U.S.C. §



       5
         See Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000); Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004); United States v. Booker, 543 U.S. 220, 125
S. Ct. 738 (2005).

                                              6
1326(b). See supra note 1. Additionally, Rose’s prior conviction was undisputedly

for a “felony that is . . . a drug trafficking offense for which the sentence imposed

exceeded 13 months.” U.S.S.G. § 2L1.2(b)(1)(A); see supra note 1. Accordingly,

we affirm Rose’s sentence.

      AFFIRMED.




                                           7
