                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                     FILED
                         ________________________         U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                              September 22, 2005
                               No. 05-10772                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                       D. C. Docket No. 04-60243-CR-JIC

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

MELVIN NOLASCO,
a.k.a. Marbien Dias,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________
                             (September 22, 2005)


Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     A federal grand jury indicted Melvin Nolasco, charging him with illegally
entering the United States after having previously been deported, in violation of 8

U.S.C. §§ 1326(a) and (b)(2). Nolasco pled guilty without the benefit of a plea

agreement. During the plea colloquy, Nolasco admitted that he is a citizen of

Honduras, that he was previously convicted of second degree rape in a Maryland

state court and was deported as a result, and that he later reentered the United

States without permission. Nolasco further stated that he understood the potential

penalties he faced for his violation, including a statutory maximum twenty years’

imprisonment. The district court found Nolasco’s plea to be freely and voluntarily

given, accepted the plea, and sentenced him to 41 months imprisonment, two years

supervised release, and a one hundred dollar special assessment. The district court

enhanced Nolasco’s sentence based upon his previous deportation for a crime of

violence. Nolasco now appeals this sentence.

      Because this case involves a preserved claim of constitutional error in

sentencing, we review it de novo. See United States v. Gallegos-Aguero, 409 F.3d

1274, 1276 (11th Cir. 2005) (per curiam).

      Nolasco argues that the district court could not impose a sentence that

exceeded the two year statutory maximum penalty for illegally reentering the

United States provided for in 8 U.S.C. § 1326(a). He contends that the district

court could not properly consider his prior conviction in applying the twenty year



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statutory maximum penalty for illegally reentering the United States when prior

removal was “subsequent to a conviction for commission of an aggravated felony”

provided for in 8 U.S.C. § 1326(b)(2). Nolasco bases this assertion on the fact

that, although the government referenced 8 U.S.C. § 1326(b)(2) in its indictment, it

did not expressly allege that Nolasco was formerly removed subsequent to an

aggravated felony conviction. The United States Supreme Court, however, as

Nolasco concedes, has directly rejected this argument.

      In Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct.

1219, 1222 (1998), the Supreme Court considered this same issue and 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.”

Accordingly, under Almendarez-Torres, the district court was permitted to rely on

Nolasco’s prior conviction of second degree rape in imposing a sentence that fell

within 8 U.S.C. § 1326(b)(2) rather than within 8 U.S.C. § 1326(a).

      Nolasco suggests that decisions subsequent to Almendarez-Torres, such as

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

Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); and


                                           3
Shepard v. United States, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), indicate that the

majority of the Supreme Court may no longer agree with Almendarez-Torres. We

have recently held, however, that, while recent case law may have cast

Almendarez-Torres into doubt, until the Supreme Court explicitly overrules it, it is

still law that is binding upon this Court. United States v. Camacho-Ibarquen, 410

F.3d 1307, 1316 n.3 (11th Cir. 2005) (per curiam) (citations omitted); see also,

e.g., U.S. v. Orduno-Mireles, 405 F.3d 960, 963 (11th Cir. 2005) (citations

omitted).

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

controls the outcome of this case. Accordingly, the district court committed no

error in considering Nolasco’s prior conviction of second degree rape in imposing

a sentence under 8 U.S.C. § 1326(b)(2) rather than within 8 U.S.C. § 1326(a).

Therefore, we AFFIRM.

AFFIRMED.




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