                                                        [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT           FILED
                        ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                No. 11-10738                 JANUARY 10, 2012
                            Non-Argument Calendar               JOHN LEY
                          ________________________               CLERK


                    D.C. Docket No. 0:10-CR-60233-WPD-1

UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                     versus

ALBERTO CASTANEDA-MARIANO,

                                                        Defendant-Appellant.

                        __________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________
                               (January 10, 2012)

Before TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.

PER CURIAM:

      Appellant Alberto Castaneda-Mariano, a citizen of Mexico, was deported

from the United States (for a second time) on November 29, 2000, following his

1996 Florida conviction for armed burglary of a dwelling. He thereafter reentered
the United States (without authorization) and on November 9, 2009, was arrested

in Broward County, Florida, for strong armed robbery. On December 6, 2010, he

pled guilty to a federal indictment charging him with being found in the United

States after having been deported without the Attorney General or his successor,

the Secretary of the Department of Homeland Security having expressly consented

to his reentry into the United States, in violation of 8 U.S.C. § 1326(a), (b)(2), and

the district court sentenced him to a prison term of 57 months. He now appeals his

sentence.

      Appellant contends that the district court infringed his Fifth and Sixth

Amendment rights when, in sentencing him under the Sentencing Guidelines, it

enhanced his U.S.S.G. § 2L1.1.2(a) base offense level of 8 by 16 levels, pursuant

to U.S.S.G. § 2L1.2(b)(1)(A), because he had previously been deported after being

convicted of a crime of violence, i.e., the 1996 Florida conviction of armed

burglary of a dwelling. Such infringement of his constitutional rights occurred, he

submits, because the fact that formed the basis of the court’s § 2L1.1(b)(1)(A)

enhancement, i.e., that 1996 conviction, was not charged in the indictment (or

admitted by him when he pled guilty). His contention is foreclosed by the

Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224,

226, 118 S.Ct. 1219, 1222, 140 L.Ed.2d 350 (1998), which holds that 8 U.S.C. §

                                          2
1326(b)(2), which the district court properly applied, is a penalty provision for 8

U.S.C. § 1326(a), not a separate crime. As such, the fact of the 1996 Florida

conviction of armed burglary of a dwelling did not have to be charged in

Appellant’s indictment.

      AFFIRMED.




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