                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                           MARCH 5, 2007
                             No. 06-14736                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                 D. C. Docket No. 06-00029-CR-T-30-EAJ

UNITED STATES OF AMERICA,


                                                    Plaintiff-Appellee,

                                  versus

DIEGO HERNANDEZ GOMEZ,

                                                    Defendant-Appellant.


                       ________________________

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

                             (March 5, 2007)

Before DUBINA, BLACK and MARCUS, Circuit Judges.

PER CURIAM:

     Appellant Diego Hernandez Gomez (“Hernandez-Gomez”) appeals his 46-
month sentence for illegally reentering the United States after previously having

been convicted of an aggravated felony offense in violation of 8 U.S.C. §§ 1326(a),

(b)(2).

          On appeal, Hernandez-Gomez first argues that § 1326 is unconstitutional

because it purports to create “sentencing factors,” which increase the statutory

maximum penalty for illegal reentry without meeting the charging and jury trial

requirements of the Fifth and Sixth Amendments. He concedes that Almendarez-

Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998) exempts prior

convictions from those requirements, but he argues that its viability has been

questioned and its holding should not be applied to his case because he did not

admit the characterization of his prior conviction. He maintains that the question

of whether a prior conviction is an aggravated felony is too far removed from the

significance of simply having a prior conviction, and thus, should not be subject to

Almendarez-Torres.

          We review a defendant’s preserved constitutional challenge to his sentence

de novo. See United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).

          Under 8 U.S.C. § 1326(a), an alien who has been deported and then reenters

the United States without permission is subject to a maximum sentence of two

years. 8 U.S.C. § 1326(a). However, the maximum sentence increases to 20 years



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if the alien was convicted of an “aggravated felony” before removal. 8 U.S.C. §

1326(b)(2).

      In Almendarez-Torres, the Supreme Court specifically addressed whether

“[§ 1326(b)] defines a separate crime or simply authorizes an enhanced penalty,”

and concluded “that the subsection is a penalty provision, which simply authorizes

a court to increase the sentence for a recidivist,” and does not “define a separate

crime.” Almendarez-Torres, 523 U.S. at 226, 118 S. Ct. at 1222. It went on to

hold that “neither the statute nor the Constitution requires the Government to

charge the factor that it mentions, an earlier conviction, in the indictment.” Id. at

226-27, 118 S. Ct at 1222.

      In Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), the

Supreme Court declined to revisit Almendarez-Torres and 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. The

Supreme Court later revisited the rule set forth in Apprendi, explicitly reaffirming

“[that a]ny 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



                                           3
beyond a reasonable doubt.” United States v. Booker, 543 U.S. 220, 244, 125 S.

Ct. 738 (2005).

      In Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254 (2005), the

Supreme Court limited the scope of judicial fact finding for a sentencing

enhancement under the Armed Career Criminal Act, 18 U.S.C. § 924(e). The

Court held:

      [the] enquiry under the ACCA to determine whether a plea of guilty to
      burglary defined by a nongeneric statute necessarily admitted
      elements of the generic offense is limited to the terms of the charging
      document, the terms of a plea agreement or transcript of colloquy
      between judge and defendant in which the factual basis for the plea
      was confirmed by the defendant, or to some comparable judicial
      record of this information.

Shepard, 544 U.S. at 26, 125 S. Ct. at 1263.

      We have held that the Supreme Court’s decision in Almendarez-Torres “was

left undisturbed by Apprendi, Blakely, and Booker.” United States v. Shelton, 400

F.3d 1325, 1329 (11th Cir. 2005). We also have noted that, while recent decisions,

including Shepard, may arguably cast doubt on the future prospects of

Almendarez-Torres, the Supreme Court has not explicitly overruled

Almendarez-Torres, and, as a result, it is still good law. See United States

v. Camacho-Ibarquen, 410 F.3d 1307, 1315-16, 1316 n.3 (11th Cir.) (upholding an

enhancement under § 1326(b)(2)), cert. denied, 126 S. Ct. 457 (2005).



                                          4
      Hernandez-Gomez argues that 8 U.S.C. § 1326 is unconstitutional because it

allows for a sentence enhancement based on facts not alleged in the indictment or

admitted regarding the aggravated nature of a previous felony. The prior

conviction of an aggravated felony as a sentencing factor for a § 1326 offense is

exactly what the defendant complained of in Almendarez-Torres, which

specifically upheld that the government does not have to allege the defendant’s

prior convictions in the indictment in order to increase the penalty. Further, we

have reiterated that we must follow Almendarez-Torres until the Supreme Court

expressly overrules it. Accordingly, we conclude that Hernandez-Gomez’s

argument that 8 U.S.C. § 1326 is unconstitutional is without merit.

      Next, Hernandez-Gomez argues that his conviction under 8 U.S.C. § 1326

violates double jeopardy principles because it raises his guideline range and

maximum statutory sentence based upon a prior conviction, resulting in additional

punishment for the previous offense. 8 U.S.C. § 1326(b)(2) raises the maximum

possible sentence beyond what the statutory maximum would be without the

finding of the prior conviction.

      “[W]e review [] de novo, as a pure question of law, any possible violation of

the Double Jeopardy Clause.” United States v. Thurston, 362 F.3d 1319, 1322

(11th Cir. 2004).



                                          5
      The Double Jeopardy Clause provides that no person shall “be subject for

the same offence to be twice put in jeopardy of life or limb.” U.S. Const., amend.

V. The Double Jeopardy Clause protects against “the imposition of multiple

punishments for the same offense.” United States v. Dowd, 451 F.3d 1244, 1251

(11th Cir.), cert. denied, 127 S. Ct. 335 (2006). Enhancement statutes “do not

change the penalty imposed for the earlier conviction,” but “penaliz[e] only the last

offense committed by the defendant.” Nichols v. United States, 511 U.S. 738, 747,

114 S. Ct. 1921, 1927 (1994). The Supreme Court has reaffirmed that sentence

enhancements are not construed as additional punishment for a previous offense,

but only increase a sentence because of the manner of the crime, and the

enhancements are neither a new jeopardy nor an additional penalty for the earlier

crimes, but a harsher punishment for the newest crime. See Monge v. California,

524 U.S. 721, 728, 118 S. Ct. 2246, 2250 (1998).

      As Hernandez-Gomez’s sentence was enhanced based on a prior conviction,

we conclude that it did not violate the Double Jeopardy Clause because it was

simply a harsher punishment for the instant conviction, not additional punishment

for a prior conviction. His double jeopardy argument also fails because

Almendarez-Torres specifically held that § 1326(b) is a penalty provision,

authorizing a court to increase the sentence for a recidivist and failing to define a



                                           6
separate crime. Therefore, Hernandez-Gomez’s conviction did not violate the

Double Jeopardy Clause. Accordingly, we affirm Hernandez-Gomez’s sentence.



      AFFIRMED.




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