                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                               April 12, 2006
                              No. 05-12853                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                    D. C. Docket No. 05-80001-CR-KLR

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

JETHRO JEROME ARTHUR,

                                                          Defendant-Appellant.


                        ________________________

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

                              (April 12, 2006)


Before ANDERSON, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:

     Appellant Jethro Jerome Arthur appeals his 30-month sentence imposed for
unlawful reentry into the United States by a previously-deported convicted felon,

in violation of 8 U.S.C. § 1326. Arthur claims that the use of a prior conviction to

increase his sentence violated his Sixth Amendment right to a jury trial because the

conviction was not alleged in the indictment, admitted by him, or proven to a jury

beyond a reasonable doubt. He also claims that his sentence imposed under the

advisory guidelines scheme established by United States v. Booker, 543 U.S. 220,

125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), violated the Due Process and Ex Post

Facto Clauses of the United States Constitution because he committed his offense

prior to Booker and relied on a mandatory guidelines scheme when he pled guilty

to the offense.

      First, we reject Arthur’s Sixth Amendment argument challenging the use of

his prior conviction to enhance his sentence. Because he properly preserved this

constitutional argument, we review this claim de novo, but reverse only for harmful

error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005) (citation omitted).

With regard to Booker constitutional errors, an individual’s Sixth Amendment right

to a jury trial is violated where a judge enhances an individual’s sentence based

solely on judicially found facts pursuant to a mandatory guidelines system. Id. at

948. However, a district court does not violate the Sixth Amendment, as

interpreted in Booker, when it enhances a defendant’s sentence based on prior



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convictions. United States v. Gallegos-Aguero, 409 F.3d 1274, 1276 (11th Cir.

2005). Moreover, we have repeatedly upheld the continuing validity of the

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

118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), which allows a district court to use

prior convictions to enhance a defendant’s sentence without alleging them in the

indictment and proving them beyond a reasonable doubt. See Shelton, 400 F.3d at

1329; United States v. Camacho-Ibarquen, 410 F.3d 1307 (11th Cir.), cert. denied,

126 S. Ct. 457 (2005). Accordingly, we find no constitutional Booker error here

because Arthur’s sentence was imposed under an advisory guidelines system and

the district court was authorized to use his prior conviction to increase his sentence.

        Second, we find meritless Arthur’s due process and ex post facto argument,

which was raised for the first time on appeal. Because we have held that there are

no due process or ex post facto violations based on the retroactive application of

Booker’s remedial opinion making the guidelines advisory, United States v.

Duncan, 400 F.3d 1297, 1306-08 (11th Cir.), cert. denied, 126 S. Ct. 432 (2005),

we conclude that no due process or ex post facto violations are implicated in this

case.

        For the above-stated reasons, we affirm Arthur’s sentence.

        AFFIRMED.



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