                                                      [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             MAY 19, 2006
                              No. 05-14438                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                     D. C. Docket No. 05-60066-CR-JIC

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

URBANO VELASCO,

                                                          Defendant-Appellant.


                        ________________________

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

                               (May 19, 2006)

Before ANDERSON, DUBINA and HULL, Circuit Judges.

PER CURIAM:

     Urbano Velasco appeals his 37-month sentence, imposed for unlawful re-
entry after deportation, alleging that the district court’s enhancement of the

sentence above the two-year statutory maximum for unlawful reentry, based upon

his prior conviction for possession of cocaine with intent to distribute, is

unconstitutional. On appeal, Velasco argues that, following its decision in Shepard

v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), a majority

of the Supreme Court now would decline to reaffirm Alemendarez-Torres v.

United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), in which the

Supreme Court held that a prior conviction is not a fact which must be admitted by

defendant or found by a jury beyond a reasonable doubt.

      Because Velasco preserved the issue below, we review de novo the

constitutional challenge to his sentence. United States v. Paz, 405 F.3d 946, 948

(11th Cir. 2005).

      The maximum statutory sentence for unlawful re-entry is 2 years. 8 U.S.C.

§ 1326(a). However, where a defendant was deported subsequent to a conviction

for an aggravated felony, the statutory maximum is 20 years. 8 U.S.C. §

1326(b)(2). A drug trafficking crime is considered an “aggravated felony” for

purposes of § 1326(b)(2). See 8 U.S.C. § 1101(a)(43)(B).

      In Almendarez-Torres, the Supreme Court held that a prior conviction is not

a fact which must be admitted by a defendant or found by a jury beyond a



                                           2
reasonable doubt. 523 U.S. at 230, 118 S.Ct. at 1219. In its subsequent decisions

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

as well as Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403

(2004) and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed2d 621

(2005), the Supreme Court reaffirmed the holding in Almendarez-Torres. See

United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005). In Apprendi, the

Court held that “[o]ther 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.” Apprendi, 530 U.S. at

490, 120 S.Ct. at 2362-63 (emphasis added). The Court revisited Apprendi in

Blakely v. Washington, clarifying “that the ‘statutory maximum’ for Apprendi

purposes is the maximum sentence a judge may impose solely on the basis of the

facts reflected in the jury verdict or admitted by the defendant[;]” it did not disturb

Apprendi’s exception for prior convictions. Blakely v. Washington, 542 U.S. at

303, 124 S.Ct. at 2537 (emphasis in original). Subsequently, in Booker, the Court

held that Blakely applied to the Federal Sentencing Guidelines and reaffirmed its

holding in Apprendi. 543 U.S. at 243-44, 125 S.Ct. at 755-56.

      Shortly after handing down its decision in Booker, the Supreme Court

decided Shepard, upon which Velasco mounts his argument. In Shepard, the



                                           3
Supreme Court limited the types of evidence a district court can constitutionally

consider to determine whether a prior burglary conviction qualifies as a violent

felony for purposes of the Armed Career Criminal Act (“ACCA”) where the

statutory definition of burglary includes both violent and non-violent conduct.

Shepard, 544 U.S. at __, 125 S.Ct. at 1257. A plurality of the Court explained

that, while a dispute over whether a burglary was a violent felony for purpose of

the ACCA 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 to say that Almendarez-Torres clearly

authorizes a judge to resolve the dispute.” Id. at ___, 125 S.Ct. at 1262.

      Since Shepard, we have consistently held that Almendarez-Torres remains

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

controlling precedent.” United States v. Orduno-Mireles, 405 F.3d 960, 963 (11th

Cir.), cert. denied, 126 S.Ct. 233 (2005). See also United States v. Camacho-

Ibarquen, 410 F.3d 1307, 1316 n.3 (11th Cir.), cert. denied, 126 S.Ct. 457

(2005)(“Although recent decisions, including 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.



                                           4
As a result, we must follow Almendarez-Torres.”)(citations omitted); United States

v. Cantellano, 430 F.3d at 1142, 1147 (11th Cir. 2005)(“The fact of a prior

conviction clearly may be found by the district court.”); Shelton, 400 F.3d at 1329

(“[A] district court does not err by relying on prior convictions to enhance a

defendant’s sentence.”).

      Furthermore, the district court here, unlike in Shepard, did not resolve any

undisputed facts. Velasco conceded at both the plea colloquy and the sentencing

hearing that he had a prior conviction for possession of cocaine with intent to

distribute. Moreover, at the plea colloquy, he stated that he understood he faced a

maximum penalty of 20 years’ imprisonment. Thus, the district court made no

findings of the sort about which the plurality warned in Shepard. See Shepard, 544

U.S. at ___, 125 S.Ct. at 1262.

      Upon review of the presentence investigation report, the sentencing

transcript, and the parties’ briefs, we find no error.

      AFFIRMED.




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