                                                           [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                              MAY 18, 2007
                               No. 06-16119                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                   D. C. Docket No. 06-00251-CR-T-24MSS

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

JUAN HUERTA-ZARCO,
a.k.a. Roberto Madrigal-Espinoza,
a.k.a. Roberto C. Martinez,

                                                           Defendant-Appellant.


                         ________________________

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

                                (May 18, 2007)

Before DUBINA, BLACK and MARCUS, Circuit Judges.

PER CURIAM:
       Appellant Juan Huerta-Zarco (“Huerta”) appeals his sentence of 84 months

imprisonment after pleading guilty to one count of being found unlawfully in the

United States after deportation for an aggravated felony, in violation of 8 U.S.C.

§ 1326(a) and (b)(2). For the first time on appeal, Huerta argues that his sentence

violates his Fifth and Sixth Amendment rights because it relies on an enhancement

based on a fact not determined by a jury beyond a reasonable doubt and is a

violation of Double Jeopardy.

       We review for plain error a constitutional claim not raised in the district

court. United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315 (11th Cir.), cert.

denied, 126 S. Ct. 457 (2005). Under the plain error standard, before an appellate

court can correct an error not raised at trial, there must be “(1) error, (2) that is

plain, and (3) that affects substantial rights. If all three conditions are met, an

appellate court may then exercise its discretion to notice a forfeited error, but only

if (4) the error seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Id. (citation omitted).

       Under § 1326(a), any alien who has been deported and subsequently reenters

the United States without permission is subject to a maximum 2-year sentence. 8

U.S.C. § 1326(a). The statute increases the penalty to a maximum term of 20 years

imprisonment “in the case of any alien . . . (2) whose removal was subsequent to a



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conviction for commission of an aggravated felony.” 8 U.S.C. § 1326(b)(2).

Among the offenses categorized as an “aggravated felony” is “illicit trafficking in a

controlled substance, including a drug trafficking crime.” 8 U.S.C.

§ 1101(a)(43)(B).

      In Almendarez-Torres, the Supreme Court specifically addressed whether

“[§ 1326(b)] defines a separate crime or simply authorizes an enhanced penalty”

and concluded “that the subsection is a penalty provision, which simply authorizes

a court to increase the sentence for a recidivist,” and does not “define a separate

crime.” Almendarez-Torres v. United States, 523 U.S. 224, 226, 118 S. Ct. 1219,

1222, 140 L. Ed. 2d 350 (1998). It went on to hold that “neither the statute nor the

Constitution requires the Government to charge the factor that it mentions, an

earlier conviction, in the indictment.” Id. at 226-27, 118 S. Ct at 1222.

      In Apprendi, the Supreme Court declined to revisit Almendarez-Torres and

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.” Apprendi v. New Jersey, 530 U.S.

466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435 (2000). The Supreme Court

later revisited the rule set forth in Apprendi, clarifying that “the ‘statutory

maximum’ for Apprendi purposes is the maximum sentence a judge may impose



                                            3
solely on the basis of the facts reflected in the jury verdict or admitted by the

defendant.” Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 2537, 159

L. Ed. 2d 403 (2004) (emphasis in original). In United States v. Booker, 543 U.S.

220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), the Court extended Blakely’s

holding to the Sentencing Guidelines, concluding that the guidelines violate the

Sixth Amendment right to a trial by jury to the extent that they permit a judge,

under a mandatory system, to increase a defendant’s sentence based on facts that

were neither found by a jury nor admitted by the defendant. 543 U.S. at 243-44,

125 S. Ct. at 755-56. The Court also explicitly reaffirmed “[that a]ny fact (other

than a prior conviction) which is necessary to support a sentence exceeding the

maximum authorized by the facts established by a plea of guilty or a jury verdict

must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”

Id. at 244, 125 S. Ct. at 756.

      We have held that the Supreme Court’s decision in Almendarez-Torres “was

left undisturbed by Apprendi, Blakely, and Booker.” United States v. Shelton, 400

F.3d 1325, 1329 (11th Cir. 2005). We have also noted that while recent decisions

may arguably cast doubt on the future prospects of Almendarez-Torres, the

Supreme Court has not explicitly overruled Almendarez-Torres, and, as a result, it

is still good law. See Camacho-Ibarquen, 410 F.3d at 1315-16, 1316 n.3



                                            4
(upholding an enhancement under § 1326(b)(2)).

         After reviewing the record, we conclude that Huerta’s argument is without

merit.

         Huerta next argues that his sentence violates Apprendi because the district

court enhanced his sentence based on a prior conviction. We have held, however,

that a prior conviction can form the basis of a sentencing enhancement even if not

admitted by the defendant or proven beyond a reasonable doubt. Id. at 1315.

Thus, Huerta’s argument is foreclosed by precedent.

         Huerta also argues that his sentence violates Double Jeopardy. The Double

Jeopardy Clause provides that no person shall “be subject for the same offence to

be twice put in jeopardy of life or limb.” U.S. Const., amend. V. This protection

applies both to successive punishments and to successive prosecutions for the same

offense. Witte v. United States, 515 U.S. 389, 395-96, 115 S. Ct. 2199, 2204, 132

L. Ed. 2d 351 (1995). Enhancement statutes “do not change the penalty imposed

for the earlier conviction,” but “penaliz[e] only the last offense committed by the

defendant.” Nichols v. United States, 511 U.S. 738, 747, 114 S. Ct. 1921, 1927,

128 L. Ed. 2d 745 (1994). Sentencing courts have not only taken into

consideration a defendant's prior convictions, but have also considered a

defendant's past criminal behavior, even if no conviction resulted from that



                                            5
behavior. Witte, 515 U.S. at 398-99, 115 S. Ct. at 2205-06.

      Huerta’s sentence was enhanced based on a prior conviction, but it did not

violate the Double Jeopardy Clause because it was simply a harsher punishment for

the instant conviction, not additional punishment for a prior conviction. See

Nichols, 511 U.S. at 747, 114 S. Ct. at 1927. Huerta’s double jeopardy argument

also fails because Almendarez-Torres specifically held that § 1326(b) is a penalty

provision, authorizing a court to increase the sentence for a recidivist, rather than

defining a separate crime. Almendarez-Torres, 523 at 226-227, 118 S. Ct. 1219 at

1222. Therefore the district court did not violate the Double Jeopardy Clause in

using Huerta’s prior conviction to enhance his sentence.

      For the above-stated reasons, we affirm Huerta’s sentence.

      AFFIRMED.




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