           Case: 15-14386   Date Filed: 06/27/2016   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-14386
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:15-cr-20318-JEM-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

CHRISTOVAL A. REECE,

                                                         Defendant-Appellant.

                      ________________________

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

                             (June 27, 2016)

Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Defendant Christoval Reece appeals his 46-month sentence imposed after

pleading guilty to one count of illegal reentry after deportation subsequent to an

aggravated felony conviction, in violation of 8 U.S.C. § 1326(a), (b)(2). On

appeal, Defendant asserts that his sentence was unconstitutionally enhanced based

on a prior conviction for drug trafficking that was not charged in the indictment or

found by the jury. Because Defendant’s argument is foreclosed by binding

precedent, we affirm.

I. BACKGROUND

      In 2007, Defendant was convicted in Massachusetts state court of five

counts of “possession to distribute” a Class B substance, and sentenced to 2 years

of home confinement and 222 days of jail. The investigation into those charges

revealed that Defendant had been deported in 1996, and as a result, he was later

charged and convicted of illegal reentry of a deported alien, in violation of 8

U.S.C. § 1326. He was subsequently removed to Jamaica in 2013.

      Then, in 2015, the U.S. Coast Guard stopped a suspect vessel heading

toward Miami, Florida, which had 13 people on board, including Defendant.

Officials with the U.S. Border Patrol determined that Defendant had been

previously removed, and did not have permission to reenter the United States.

Defendant was later charged and pleaded guilty to the present offense of illegal




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reentry after deportation subsequent to a conviction for an aggravated felony, in

violation of § 1326(a), (b)(2).

      In anticipation of sentencing, the probation officer prepared a Presentence

Investigation Report (“PSR”). The PSR assigned Defendant a base offense level of

eight, pursuant to U.S.S.G. § 2L1.2(a). Defendant received a 12-level

enhancement under § 2L1.2(b)(1)(B) because he had been previously deported and

had a conviction for a drug trafficking offense for which the sentence imposed was

13 months or less. After a three-level reduction for acceptance of responsibility

under U.S.S.G. § 3E1.1(a), (b), Defendant’s total offense level was 17. Based on a

total offense level of 17 and a criminal history category of V, the PSR calculated a

guideline range of 46 to 57 months’ imprisonment. The PSR stated that the

statutory maximum for his offense was 20 years’ imprisonment.

      Of relevance, Defendant objected to the constitutionality of an enhancement

based on the finding that his qualifying prior conviction was an aggravated felony

because it was not alleged in the indictment or proved to the jury beyond a

reasonable doubt. At sentencing, Defendant conceded that his objection was

foreclosed by binding precedent and, consequently, the district court sentenced him

to 46 months’ imprisonment.




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II. DISCUSSION

      We review issues related to the constitutionality of a sentence de novo.

United States v. Steed, 548 F.3d 961, 978 (11th Cir. 2008).

      A conviction for illegal reentry into the United States under § 1326(a)

carries a two-year maximum sentence. 8 U.S.C. § 1326(a). However, if an alien’s

initial removal was subsequent to an aggravated-felony conviction, the applicable

maximum sentence is 20 years’ imprisonment. Id. § 1326(b)(2).

      In Almendarez-Torres v. United States, the Supreme Court held that, in the

context of § 1326(b)(2)’s penalty provision, a defendant’s prior aggravated-felony

conviction is merely a sentencing factor that need not be charged in an indictment

or proven to a jury beyond a reasonable doubt. 523 U.S. 224, 226–27 (1998).

Later, in Apprendi v. New Jersey, the Supreme 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.” 530 U.S. 466, 489–90 (2000).

      More recently, the Supreme Court held in Alleyne v. United States that

“[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ that must

be submitted to the jury and found beyond a reasonable doubt.” 133 S. Ct. 2151,

2155 (2013). In doing so, the Supreme Court specifically stated that it was not

revisiting the holding of Almendarez-Torres. Id. at 2160 n.1.


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      While we have recognized that there is some discord between Alleyne and

Apprendi on the one hand and Almendarez-Torres on the other, we have stated that

“[n]othing in the facts or holding of Alleyne indicates that it eliminated Apprendi’s

exception for judicial findings of prior convictions that increase a criminal

penalty.” United States v. Harris, 741 F.3d 1245, 1249–50 (11th Cir. 2014). And

we have explicitly stated that Almendarez-Torres remains binding precedent unless

and until the Supreme Court overrules it. Id. at 1250.

      Though conceding that his argument is foreclosed by binding precedent,

Defendant asserts that the district court’s finding that his qualifying prior

conviction was an aggravated felony enhanced his statutory maximum sentence,

but was not alleged in the indictment or found by a jury as required by the Fifth

and Sixth Amendments. Defendant’s sole argument on appeal is foreclosed by

Almendarez-Torres. See Almendarez-Torres, 523 U.S. at 226–27. As noted, we

are bound by the holding of Almendarez-Torres unless and until it is overruled by

the Supreme Court. See Harris, 741 F.3d at 1250. Accordingly, Defendant’s

sentence is AFFIRMED.




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