                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                       FILED
                          ________________________           U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                                                  December 15, 2005
                                No. 05-12442                    THOMAS K. KAHN
                            Non-Argument Calendar                   CLERK
                          ________________________

                      D. C. Docket No. 04-20689-CR-MGC

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                      versus

FREDERICO VILCHEZ,

                                                              Defendant-Appellant.


                          ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________
                             (December 15, 2005)


Before BIRCH, DUBINA and HULL, Circuit Judges.

PER CURIAM:

     Frederico Vilchez pled guilty to a charge for illegal reentry after deportation,
in violation of 8 U.S.C. § 1326(a) and (b)(1), and was sentenced to 41 months of

imprisonment. Vilchez argues on appeal that the use of the prior convictions to

enhance his sentence violated his Fifth and Sixth Amendment rights and that the

use of an unproven and unadmitted prior conviction to enhance his sentence under

the advisory Sentencing Guidelines violates the Ex Post Facto and Due Process

Clauses. After review, we AFFIRM.



                                I. BACKGROUND

      According to the facts stipulated to at the plea hearing, Vilchez is a Peruvian

citizen who was previously deported from the United States in 1996. In April

2004, he was incarcerated in a Dade County Jail, charged with false imprisonment,

stalking, battery, threatening to tamper with a witness, driving under the influence,

and driving without a license. The government charged him with illegal reentry

after deportation, in violation of 8 U.S.C. § 1326(a) and (b)(1). Under

§ 1326(b)(1), Vilchez’s prior felony drug convictions increased the statutory

maximum sentence from two years, under § 1326(a), to ten years. The district

court sentenced Vilchez to 41 months imprisonment, which is above the two-year

maximum under § 1326(a).

      The central issue raised in this case involves the appellant’s claim that the



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government is obligated to prove his prior drug convictions in the guilt

determination phase of his case in order to use them at the sentencing hearing.

Vilchez makes a half-hearted attempt to distinguish binding circuit precedent but

admits that his main purpose is to preserve the issue for petition for certiorari to the

United States Supreme Court.



                                  II. DISCUSSION

      Vilchez objected to the government’s failure to allege in the indictment his

prior convictions, which resulted in a increased statutory maximum sentence under

8 U.S.C. § 1326(b)(1), and to the enhancement of his offense level under the

Guidelines in the district court. We review these claims de novo on appeal, and

reverse the later only for harmful error. United States v. Candelario, 240 F.3d

1300, 1306 (11th Cir. 2001); United States v. Paz, 405 F.3d 946, 948 (11th Cir.

2005) (per curiam).

      The Supreme Court established in Almendarez-Torres v. United States that a

defendant’s prior conviction, in the context of the increased-penalty provision of 8

U.S.C. § 1326(b), is merely a sentencing factor that does not have to be submitted

to the jury and proved beyond a reasonable doubt. 523 U.S. 224, 247, 118 S. Ct.

1219, 1232–33 (1998). The Court held that the use of a prior conviction as a



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sentencing factor does not violate the Due Process Clause. Id. at 239–41, 247, 118

S. Ct. at 1229, 1233. The Court later held in Apprendi v. New Jersey that “[o]ther

than 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, 490, 120 S. Ct. 2348, 2362–63 (2000). The

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.” Id. at

490, 120 S. Ct. at 2362.

      In Blakely v. Washington, the Supreme Court, in examining the state of

Washington’s sentencing guidelines, held that the imposition of a sentencing

enhancement must be supported by facts that were either admitted by the defendant

or found beyond a reasonable doubt by the jury. 542 U.S. 296, 303–04, 124 S. Ct.

2531, 2537–38. In United States v. Booker, the Supreme Court extended the

reasoning of Blakely to the federal Sentencing Guidelines, concluding that the

mandatory nature of the Sentencing Guidelines rendered them incompatible with

the Sixth Amendment’s guarantee to the right to a jury trial. 543 U.S. at ___, 125

S. Ct. 738, 749–51 (2005). The Court excised several sections of the Guidelines,

making the Guidelines advisory, not mandatory. Id. at ___, 125 S. Ct. at 756–57.

In extending its holding in Blakely to the Federal Guidelines, the Court, in Booker,



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explicitly reaffirmed its rationale in Apprendi that a fact, other than a prior

conviction, that supports a sentence exceeding the statutory maximum must be

admitted by the defendant or submitted to a jury and proved beyond a reasonable

doubt. Id. at ___, 125 S. Ct. at 756.

      In United States v. Marseille, we declined to interpret the Supreme Court’s

rationale in Apprendi as overruling the prior Supreme Court holding in

Almendarez-Torres that the government “need not allege in its indictment and need

not prove beyond a reasonable doubt that a defendant had prior convictions for a

district court to use those convictions for purposes of enhancing a sentence.” 377

F.3d 1249, 1257 (11th Cir.), cert. denied, 125 S. Ct. 637 (2004). We later clarified

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).

      Vilchez presents two arguments on this appeal. First, he argues that a prior

conviction that was not listed in the indictment, proven beyond a reasonable doubt,

or admitted cannot be used to increase his statutory maximum from two years to

ten years under 18 U.S.C. § 1326(b)(1). Second, he contends that the sentencing

court violated his constitutional rights at sentencing by enhancing his offence level

pursuant to U.S.S.G. § 2L1.2(b)(1)(A) (2004). We address these in turn.



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A. 8 U.S.C. § 1326(b)(1)

        There is a two-year maximum sentence for aliens who illegally attempt to

re-enter the United States after being deported. 8 U.S.C. § 1326(a). However, if

an alien’s initial deportation was subsequent to that person’s conviction for the

commission of three or more misdemeanors involving drugs or a felony, the

statutory maximum increases to ten years. 8 U.S.C. § 1326(b)(1).

       In this case, the district court correctly relied on Vilchez’s prior convictions

to sentence him in accordance with the increased penalty provision of

§ 1326(b)(1). See Almendarez-Torres, 523 U.S. at 247, 118 S. Ct. at 1232–33.

For the Sixth Amendment, Booker made clear that prior convictions need not be

admitted to by a defendant or proven to a jury beyond a reasonable doubt.1 543

U.S. at ___, 125 S. Ct. at 756. Therefore, because Almendarez-Torres remains

good law, we reject Vilchez’s claim that the increase in his statutory maximum

sentence from two years to ten years under 8 U.S.C. § 1326(b)(1) violated his Fifth

or Sixth Amendment rights. See Shelton, 400 F.3d at 1329.




       1
         Furthermore, Vilchez did not object to the truth of the facts of his prior convictions.
His objection was to the use of those convictions at sentencing without first listing them in the
indictment or proving them beyond a reasonable doubt. Therefore, for Booker purposes, Vilchez
admits the facts of his past convictions, and their use at sentencing was not improper. See
United States v. Burge, 407 F.3d 1183, 1191 (11th Cir.), cert. denied, 126 S. Ct. 551 (2005).

                                                6
B. U.S.S.G. § 2L1.2(b)(1)(A)

       Vilchez’s offense level was increased from 8 to 24, pursuant to U.S.S.G.

§ 2L1.2(b)(1)(A). That section provides for a 16-level increase to a defendant’s

base offense level if the defendant was previously deported or unlawfully remained

in the United States after, inter alia, 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).

      In United States v. Duncan, we held that, post-Booker, when a defendant

was sentenced to the statutory maximum for offenses committed pre-Booker, that

defendant had “sufficient warning” to satisfy due process and ex post facto

concerns. 400 F.3d 1297, 1308 (11th Cir.), cert. denied, 126 S. Ct. 432 (2005).

      In this case, Vilchez knew at the time the offense was committed that the

Guidelines allowed the judge to engage in judicial fact-finding and that ten years’

imprisonment was a potential consequence of his actions. Therefore, there was no

ex post facto or due process violation. See Duncan, 400 F.3d at 1307. As to

Vilchez’s argument that the district court’s enhancement of his sentence under the

Guidelines violated his Sixth Amendment right to a jury trial, the Supreme Court,

in Booker, held that it was the mandatory nature of the Sentencing Guidelines that

implicated the Sixth Amendment. Booker, 543 U.S. at ___, 125 S. Ct. at 750.



                                            7
Here, the district court acknowledged that it was applying the Guidelines as

advisory. Therefore, under Booker, Vilchez’s Sixth Amendment rights were not

violated. Furthermore, because Almendarez-Torres remains good law, there is no

Sixth Amendment violation by applying a Guidelines sentencing enhancement

based on prior convictions. United States v. Camacho-Ibarquen, 410 F.3d 1307,

1315–16 (11th Cir.) (per curiam), cert. denied, 126 S. Ct. 457 (2005).



                               III. CONCLUSION

      Vilchez appealed the determination of his sentence following a guilty plea.

We find no error. AFFIRMED.




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