                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT            FILED
                          ________________________ U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                 No. 06-14595                    APRIL 30, 2007
                             Non-Argument Calendar             THOMAS K. KAHN
                           ________________________                 CLERK


                      D. C. Docket No. 06-80065-CR-WPD

UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                      versus

ANTONIO AMADOR ORTIZ,

                                                            Defendant-Appellant.

                           ________________________

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

                                (April 30, 2007)

Before TJOFLAT, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      Antonio Amador Ortiz appeals his 70-month sentence, imposed after he pled

guilty to illegally reentering the country after being previously deported, in

violation of 8 U.S.C. §§ 1326(a), 1326(b)(2). On appeal, Ortiz argues that his Fifth
and Sixth Amendment rights were violated when the district court imposed

sentence based on his prior felony conviction for attempted lewd and lascivious

molestation of a child less than 12, where the facts underlying the felony were

neither alleged in the indictment nor admitted at the plea colloquy, contrary to

United States v. Booker, 543 U.S. 220 (2005).1 We affirm.

       Because Ortiz asserted his Booker claim at sentencing, he raised a timely

constitutional objection and is entitled to preserved error review. See United States

v. Candelario, 240 F.3d 1300, 1306 (11th Cir. 2001).                      We review preserved

constitutional errors de novo, but “will reverse only for harmful error.” See United

States v. Sanchez, 269 F.3d 1250, 1272 (11th Cir. 2001) (en banc).

       Section 1326(b)(2) of Title 8 of the United States Code provides for a

maximum sentence of 20 years’ imprisonment for illegal reentry if a defendant was

deported subsequent to being convicted of an aggravated felony. On the other

hand, a defendant who was not deported subsequent to being convicted of an

aggravated felony, and who does not satisfy any of the other requirements


       1
           To the extent Ortiz suggests the district court’s imposition of sentence also violated
Shepard v. United States, 544 U.S. 13 (205), we are unpersuaded. In Shepard, the district court had
been asked to review police documents concerning the nature of the underlying offense. Here, by
contrast, the district court did not look beyond the fact of Ortiz’s prior conviction in enhancing his
sentence under § 2L1.2(b)(1)(A). Accordingly, Shepard was not implicated. See United States v.
Orduno-Mireles, 405 F.3d 960, 962 (11th Cir.) (distinguishing Shepard and noting that the defendant
did not contend and the record did not reveal that the district court had resolved disputed facts
relating to the prior conviction supporting enhancement for prior crime of violence under §
2L1.2(b)(1)(A)), cert. denied, 126 S. Ct. 223 (2005).

                                                  2
justifying an enhanced penalty under § 1326(b), is subject to a maximum of two

years’ imprisonment, under 8 U.S.C. § 1326(a).

      As Ortiz recognizes, the Supreme Court has held that the government need

not allege in the indictment nor prove beyond a reasonable doubt the fact that a

defendant had prior convictions in order for a district court to enhance a

defendant’s sentence based on those convictions.       See Almendarez-Torres v.

United States, 523 U.S. 224, 247 (1998). Notably, Almendarez-Torres involved a

challenge to the exact penalty provision at issue in the instant case -- 8 U.S.C. §

1326(b)(2). More recently, in United States v. Booker, 543 U.S. 220 (2005), the

Court reiterated its holding in Almendarez-Torres: “Any 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.” 543

U.S. at 244 (emphasis added).

      We have observed that the Almendarez-Torres decision “was left

undisturbed by Apprendi, Blakely [v. Washington, 542 U.S. 296 (2004)], and

Booker.” United States v. Shelton, 400 F .3d 1325, 1329 (11th Cir. 2005). And

we have consistently rejected the argument that a district court errs by basing a

sentencing enhancement on a prior conviction that is neither proved beyond a



                                         3
reasonable doubt to a jury nor admitted by the defendant. See, e.g., United States

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

v. Camacho-Ibarquen, 410 F.3d 1307, 1315-16 (11th Cir.), cert. denied, 126 S. Ct.

457 (2005); United States v. Orduno-Mireles, 405 F.3d 960, 962-63 (11th Cir.),

cert. denied, 126 S. Ct. 223 (2005). We reject Ortiz’s invitation to revisit this issue

yet again. Pursuant to Almendarez-Torres, and our uniform line of cases applying

it, the district court did not err in sentencing Ortiz based on his prior conviction.

      AFFIRMED.




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