             Case: 14-11986       Date Filed: 02/26/2015   Page: 1 of 5


                                                               [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 14-11986
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 3:11-cr-00199-HLA-JRK-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

WINSTON WILFRED JONES,
a.k.a. Michael W. Frazer,
a.k.a. Mark Michael Jones, Jr.,

                                                               Defendant-Appellant.

                         ________________________

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

                              (February 26, 2015)

Before ROSENBAUM, JULIE CARNES, and FAY, Circuit Judges.

PER CURIAM:
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      Winston Jones appeals his 36-month sentence of imprisonment, imposed

after he pled guilty to being unlawfully present in the United States following

removal, in violation of 8 U.S.C. § 1326(a). He argues that the district court erred

by increasing the statutory maximum sentence based upon a prior aggravated

felony conviction that was neither charged in the indictment nor proven beyond a

reasonable doubt. Because Jones’s challenged is foreclosed by precedent, we

affirm.

      We generally review constitutional sentencing issues de novo. United States

v. Harris, 741 F.3d 1245, 1248 (11th Cir. 2014).

      An alien who enters or is found in the United States illegally after previously

having been deported is subject to a maximum of two years’ imprisonment. 8

U.S.C. § 1326(a). If the defendant’s removal occurred after a conviction for an

aggravated felony, however, the statutory maximum increases to twenty years’

imprisonment. Id. § 1326(b)(2).

      In Almendarez-Torres v United States, 523 U.S. 224, 118 S. Ct. 1219,

(1998), the Supreme Court held that a prior conviction “relevant only to the

sentencing of an offender found guilty of the charged crime” does not have to be

charged in an indictment or proven beyond a reasonable doubt to a jury, even if it

increases the defendant’s maximum statutory sentence. Id. at 228-47, 118 S. Ct. at

1223-33. The Court concluded that subsection (b)(2) of § 1326 was intended by


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Congress to be a such a “sentencing factor” and not an element of the offense that

needed to be charged in the indictment or proven beyond a reasonable doubt. Id. at

235, 118 S. Ct. at 1226.

      Two years later, the Supreme Court held that any “facts that increase the

prescribed range of penalties to which a criminal defendant is exposed” are

elements of the crime. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct.

2348, 2362-63 (2000) (quotation marks omitted) (concerning statutory maximum

penalties).   But the Court also carved out an exception for prior convictions

covered by Almendarez-Torres, despite acknowledging that it was “arguable that

Almendarez-Torres was incorrectly decided.” Id. at 489-90, 120 S. Ct. at 2362-63

(“Other 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.”).

      Recently, the Supreme Court, consistent with Apprendi, held 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.” Alleyne v. United

States, 570 U.S. __, __, 133 S. Ct. 2151, 2155 (2013) (concerning mandatory

minimum sentences). Nevertheless, the Court also noted specifically that it was

not at that time revisiting Almendarez-Torres’s “narrow exception” for the fact of a

prior conviction. Id. at __, 133 S. Ct. at 2160 n.1.


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      Turning to this Court’s precedent, we have specifically stated that we are

“bound by Almendarez-Torres until it is explicitly overruled by the Supreme

Court.” United States v. Dowd, 451 F.3d 1244, 1253 (11th Cir. 2006); United

States v. Thomas, 242 F.3d 1028, 1035 (11th Cir. 2001) (“[W]e are bound to

follow Almendarez-Torres unless and until the Supreme Court itself overrules that

decision.”).   After Alleyne was decided, we recognized that there was “some

tension between Almendarez-Torres on the one hand and Alleyne and Apprendi on

the other,” but we again concluded that “we are not free to do what the Supreme

Court declined to do in Alleyne, which is overrule Almendarez-Torres.” United

States v. Harris, 741 F.3d 1245, 1250 (11th Cir. 2014).

      Nevertheless, Jones argues that Almendarez-Torres has been “gravely

wounded” by subsequent Supreme Court decisions and asserts that we need not

follow that decision because the facts of his case are distinguishable. See, e.g.,

Jefferson Cnty. v. Acker, 210 F.3d 1317, 1320 (11th Cir. 2001) (“But if the facts of

a gravely wounded Supreme Court decision do not line up closely with the facts

before us—if it cannot be said that decision ‘directly controls’ our case—then, we

are free to apply the reasoning in later Supreme Court decisions to the case at

hand.”). The crucial factual difference, Jones contends, is that the defendant in

Almendarez-Torres admitted the fact of his prior convictions at the plea hearing,

whereas Jones did not. But this Court has held that “the Supreme Court’s decision


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in Almendarez-Torres forecloses his argument that the existence of his prior

convictions needed to be admitted in his guilty plea or otherwise proven beyond a

reasonable doubt.” United States v. Overstreet, 713 F.3d 627, 635 (11th Cir.), cert.

denied, 134 S. Ct. 229 (2013). Accordingly, Almendarez-Torres applies to the

facts of Jones’s case.

      Because we are bound by Almendarez-Torres until it is “explicitly

overruled” by the Supreme Court, the district court did not err in increasing Jones’s

statutory maximum based on a prior conviction not admitted in a guilty plea or

charged in the indictment. Overstreet, 713 F.3d at 635; Dowd, 451 F.3d at 1253.

Accordingly, we affirm Jones’s sentence.

      AFFIRMED.




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