                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 09-16440                ELEVENTH CIRCUIT
                                                           OCTOBER 29, 2010
                         Non-Argument Calendar
                                                              JOHN LEY
                       ________________________
                                                               CLERK

                 D. C. Docket No. 09-00256-CR-J-25TEM

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

JOSE FERNANDO MARTINEZ-CACERES,
a.k.a. Javier Diaz Sanchez,
a.k.a. Jose Fernando Martinez-Caseras,

                                                         Defendant-Appellant.


                       ________________________

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

                            (October 29, 2010)

Before EDMONDSON, MARTIN and FAY, Circuit Judges.

PER CURIAM:
      Jose Fernando Martinez-Caceres appeals his sentence for illegal reentry into

the United States following a previous deportation, in violation of 8 U.S.C. § 1326.

On appeal, Martinez-Caceres contends that the district court erred by imposing an

enhanced sentence based on a felony conviction that was not set forth in the

charging information. He recognizes that Almendarez-Torres v. United States, 523

U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) holds that a prior conviction is

not an element of the offense under 8 U.S.C. § 1326(b), but he argues that

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)

and subsequent cases have called the validity of Almendarez-Torres into question.

He asserts that we should not apply Almendarez-Torres to the “distinguishable

facts” of his case. For the reasons stated below, we affirm Martinez-Caceres’s

sentence.

      We review constitutional issues de novo. United States v. Steed, 548 F.3d

961, 978 (11th Cir. 2008). In Almendarez-Torres, the Supreme Court explained

that a prior conviction used to enhance a sentence under 8 U.S.C. § 1326(b)(2) is

not an element of the offense, and, therefore, it need not be alleged in the

indictment or found by a jury beyond a reasonable doubt. Almendarez-Torres,

523 U.S. at 226-27, 118 S.Ct. at 1222. Although Apprendi and subsequent

decisions have cast doubt on the reasoning of Almendarez-Torres, we have



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repeatedly explained that Almendarez-Torres remains binding precedent unless and

until that case is expressly overruled by the Supreme Court. Steed, 548 F.3d at

979-80; United States v. Greer, 440 F.3d 1267, 1273-76 (11th Cir. 2006); United

States v. Gibson, 434 F.3d 1234, 1246-47 (11th Cir. 2006).

      Martinez-Caceres’s argument that the district court erred by enhancing his

sentence based on a prior conviction not charged in the information is foreclosed

by Almendarez-Torres. See Almendarez-Torres, 523 U.S. at 226-27, 118 S.Ct. at

1222. As noted above, Almendarez-Torres remains binding precedent in this

Circuit unless and until it is overruled by the Supreme Court. See Steed, 548 F.3d

at 979-80; Greer, 440 F.3d at 1273-76; Gibson, 434 F.3d at 1246-47. Although

Martinez-Caceres suggests that Almendarez-Torres is distinguishable, he does not

point to any differences between that case and his own. Almendarez-Torres

addressed the same legal question and the same statute that are at issue in this case.

See Almendarez-Torres, 523 U.S. at 226-27, 118 S.Ct. at 1222. Almendarez-

Torres is directly on point, and, under that decision, the district court did not err by

imposing an enhanced sentence based on a conviction not alleged in the

information. Accordingly, we affirm Martinez-Caceres’s sentence.

      AFFIRMED.




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