                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             MAY 30, 2007
                              No. 06-15664                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                  D. C. Docket No. 06-00196-CR-J-25-HTS

UNITED STATES OF AMERICA,


                                                     Plaintiff-Appellee,

                                    versus

RENAN CALIX-MATUTE,
a.k.a. Renan Matute,

                                                     Defendant-Appellant.


                        ________________________

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

                              (May 30, 2007)

Before BIRCH, DUBINA and CARNES, Circuit Judges.

PER CURIAM:

     Appellant Renan Calix-Matute appeals his 36-month sentence for illegal
reentry into the United States after deportation, in violation of 8 U.S.C. § 1326. He

argues that he pled guilty only to a violation of 8 U.S.C. § 1326(a), for which the

maximum penalty is two years imprisonment, but the district court sentenced him

as if he had been convicted under U.S.C. § 1326(b)(1), for which the maximum

penalty is ten years. He concedes that the Supreme Court held in Almendarez-

Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998),

that the government need not allege a defendant’s prior felony conviction in the

indictment in order for the district court to impose an “enhanced” sentence under

§ 1326(b) because the prior felony is not an element of the offense. However, he

argues that, in light of the Supreme Court’s decision in Apprendi v. New Jersey,

530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which struck down a

similar sentencing enhancement provision in a New Jersey statute, we should hold

that the enhancement provision in § 1326(b) is unconstitutional and reverse his

sentence.

      Because Calix-Matute objected in the district court to the government’s

failure to allege his prior conviction in the indictment as a violation of Apprendi,

we review his claim de novo. United States v. Candelario, 240 F.3d 1300, 1306

(11th Cir. 2001). Section 1326(a) establishes a two-year maximum sentence for

aliens who illegally attempt to re-enter the United States after being deported. 8



                                           2
U.S.C. § 1326(a). Pursuant to § 1326(b)(1), however, if an alien’s initial

deportation was subsequent to a conviction for a felony, the statutory maximum

increases to ten years.

      The Supreme Court established in Almendarez-Torres that a defendant’s

prior conviction in the context of the § 1326(b) increased-penalty provision is

merely a sentencing factor that does not have to be submitted to the jury and

proved beyond a reasonable doubt. 523 U.S. at 243-45, 118 S.Ct. at 1225, 1231-

32. The Court later held in Apprendi 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. at 490, 120 S.Ct. at 2362-63. The Supreme Court also stated that

“we need not revisit [Almendarez-Torres] for purposes of our decision today to

treat the case as a narrow exception to the general rule.” Apprendi, 530 U.S. at

490, 120 S.Ct. at 2362.

      After Apprendi was issued, we considered its effect on Almendarez-Torres

and whether the government now needs to allege a defendant’s prior conviction in

the indictment in order for the court to sentence him under the increased maximum

penalty provision of § 1362(b)(2). United States v. Guadamuz-Solis, 232 F.3d

1363, 1363 (11th Cir. 2000). In Guadamuz-Solis, we held that “Almendarez-



                                          3
Torres remains the law until the Supreme Court determines that Almendarez-

Torres is not controlling precedent.” Id.

      Because the Supreme Court’s holding in Almendarez-Torres remains

binding precedent, we affirm Calix-Matute’s sentence.

AFFIRMED.




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