                                                       [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                                                                 FILED
                        ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                           September 23, 2005
                              No. 05-10780
                                                          THOMAS K. KAHN
                          Non-Argument Calendar               CLERK
                        ________________________

                     D. C. Docket No. 04-00178-CR-CG

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

MARVIN JUAN SANCHEZ ROSALES,

                                                          Defendant-Appellant.


                        ________________________

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

                            (September 23, 2005)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     Marvin Juan Sanchez Rosales appeals his 41-month sentence for illegally
reentering the United States after deportation, in violation of 8 U.S.C. §§ 1326(a)-

(b). The district court enhanced Rosales’ sentence based upon his previous

deportation for a crime of violence. Rosales now appeals this sentence.

      Because Rosales failed to object to his sentence, we review this issue for

plain error. United States v. Orduno-Mireles, 405 F.3d 960, 961 (11th Cir. 2005),

petition for cert. filed, (No. 05-5141, July 1, 2005).

      Rosales argues that the sentencing enhancements for prior convictions as

authorized by 8 U.S.C. §§ 1326(b)(1)-(2) are unconstitutional because the Supreme

Court, in Shepard v. United States, ___ U.S. ___, 125 S.Ct. 1254, 161 L.Ed.2d 205

(2005), recently questioned its previous holding in Almendarez-Torres v. United

States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). In Almendarez-

Torres, 523 U.S. at 226-27, the Supreme Court held that 8 U.S.C. § 1326(b)(2) “is

a penalty provision, which simply authorizes a court to increase the sentence for a

recidivist. It does not define a separate crime. Consequently, neither the statute

nor the Constitution requires the Government to charge the factor that it mentions,

an earlier conviction, in the indictment.” Rosales contends that in light of Shepard,

the holding of Almendarez-Torres is no longer good law, and the use of the fact of

a prior conviction must now be alleged in the indictment and proven to the jury

beyond a reasonable doubt or admitted by the defendant as part of a plea



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agreement. Rosales concedes, however, that we have rejected this argument post-

Shepard.

      In Shepard, a plurality of the Supreme Court explained that, while a dispute

over whether a burglary was a violent felony for purposes of the Armed Career

Criminal Act could be “described as a fact about a prior conviction, it [was] too far

removed from the conclusive significance of a prior judicial record, and too much

like the findings subject to Jones[ v. United States, 526 U.S. 227, 119 S.Ct. 1215,

143 L.Ed.2d 311 (1999)] and Apprendi[ v. New Jersey, 530 U.S. 466, 120 S.Ct.

2348, 147 L.E.2d 435 (2000)], to say that Almendarez-Torres clearly authorizes a

judge to resolve the dispute.” Shepard, 125 S.Ct. at 1262.

      In United States v. Camacho-Ibarquen, 410 F.3d 1307, 1316 n.3 (11th Cir.

2005) (per curiam), we noted that although Shepard “may arguably cast doubt on

the future prospects of Almendarez-Torres’s holding regarding prior convictions,

the Supreme Court has not explicitly overruled Almendarez-Torres. As a result,

we must follow Almendarez-Torres.” Indeed, in considering a challenge to an

enhancement pursuant to 8 U.S.C. § 1326, we held that “Almendarez-Torres

remains the law until the Supreme Court determines that Almendarez-Torres is not

controlling precedent.” Orduno-Mireles, 405 F.3d at 963.

      Because the Supreme Court has not overruled Almendarez-Torres, it



                                          3
controls the outcome of the case. Accordingly, the district court did not plainly err

in enhancing Rosales’ sentence under 8 U.S.C. § 1326(b). Therefore, we affirm.

      AFFIRMED.




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