               Case: 11-14893   Date Filed: 11/01/2012   Page: 1 of 3

                                                             [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                       _____________________________

                                No. 11-14893
                            Non-Argument Calendar
                       _____________________________

                    D. C. Docket No. 9:11-cr-80111-DTKH-2


UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

      versus

ANDREW SMITH,
a.k.a. Lennox Cross,
a.k.a Lennoy Cross,
a.k.a. Paul Jones,
a.k.a. Garfield Thomas,
a.k.a. Biggs,

                                                             Defendant-Appellant.

                _________________________________________

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

                                (November 1, 2012)


Before TJOFLAT, KRAVITCH and EDMONDSON, Circuit Judges.
              Case: 11-14893     Date Filed: 11/01/2012   Page: 2 of 3



PER CURIAM:



             Andrew Smith appeals his 30-month sentence for illegal reentry into

the United States following a previous deportation, in violation of 8 U.S.C. §

1326(a), (b)(2). On appeal, Smith contends that the district court erred by

imposing an enhanced sentence based on a felony conviction that was not set forth

in the indictment and not found by a jury beyond a reasonable doubt. He

recognizes that Almendarez–Torres v. United States, 523 U.S. 224, 118 S.Ct.

1219, 140 L.Ed.2d 350 (1998), decided that a prior conviction is not an element of

the offense under section 1326(b); but he argues that Apprendi v. New Jersey, 530

U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington,

542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) have called the validity of

Almendarez–Torres into question. We affirm Smith’s sentence.

      We review constitutional sentencing issues de novo. United States v. Steed,

548 F.3d 961, 978 (11th Cir. 2008). In Almendarez–Torres, the Supreme Court

explained that a prior conviction used to enhance a sentence under section

1326(b)(2) is no element of the offense, and therefore, it need not be alleged in the

indictment or found by a jury beyond a reasonable doubt. Almendarez–Torres,



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              Case: 11-14893    Date Filed: 11/01/2012   Page: 3 of 3

523 U.S. at 226-27, 118 S.Ct. at 1222. Although Apprendi and later decisions

might have cast doubt on the reasoning of Almendarez–Torres, we have repeatedly

explained that Almendarez–Torres remains binding precedent unless and until that

case is expressly overruled by the Supreme Court. Steed, 548 F.3d at 979-80;

United States v. Greer, 440 F.3d 1267, 1273-76 (11th Cir. 2006); United States v.

Gibson, 434 F.3d 1234, 1246-47 (11th Cir. 2006).

      Smith’s argument that the district court erred by enhancing his sentence

based on an earlier conviction not charged in the indictment or proven to a jury

beyond a reasonable doubt is foreclosed by Almendarez–Torres. See

Almendarez–Torres, 523 U.S. at 226-27, 118 S.Ct. at 1222. Accordingly, we

affirm Smith’s sentence.

      AFFIRMED.




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