                                                             [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT            FILED
                           ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                  No. 05-11120                JANUARY 25, 2006
                              Non-Argument Calendar           THOMAS K. KAHN
                                                                  CLERK
                            ________________________

                    D. C. Docket No. 04-00333-CR-T-26-TBM

UNITED STATES OF AMERICA,


                                                          Plaintiff-Appellee,

                                      versus

MARTIN SILVA,
a.k.a. Martin Silvestre Ruis,
a.k.a. Martin Silva-Gomez,

                                                          Defendant-Appellant.


                            ________________________

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

                                 (January 25, 2006)

Before CARNES, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:
      Martin Silva appeals his conviction and 41-month sentence for unlawful re-

entry into the United States by a previously-deported convicted felon, in violation

of 8 U.S.C. § 1326. We find no merit to the four arguments Silva makes on

appeal.

      First, we reject Silva’s argument that 8 U.S.C. § 1326 is unconstitutional as

it relates to aliens who previously have committed an aggravated felony. This

court has repeatedly upheld the continuing validity of Almendarez-Torres v.

United States, 523 U.S. 224, (1998) which carved out an exception for recidivism

to the rule that the government must plead and prove facts to enhance convictions.

See United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005); United States

v. Camacho-Ibarquen, 410 F.3d 1307 (11th Cir.), cert. denied, 126 S.Ct. 457

(2005).

      Second, we reject Silva’s argument, made for the first time on appeal, that

because he committed his offense while the guidelines were mandatory, ex post

facto principles required that his sentence not be higher than the constitutionally

applied maximum of the guideline range, based only on facts that were alleged in

the indictment and admitted by him at the plea hearing. We have previously

addressed and rejected this argument in United States v. Duncan, 400 F.3d 1297,

1307-1308 (11th Cir.) cert. denied, 126 S.Ct. 432 (2005).



                                           2
       Third, we find meritless Silva’s argument that the enhanced maximum

penalty prescribed by § 1326 (b) for aliens who have committed an aggravated

penalty violates or otherwise implicates the Double Jeopardy Clause of the

Constitution. We have stated that consideration of prior convictions as relevant

conduct in calculating a guideline sentence does not violate the Double Jeopardy

Clause. See United States v. Fuentes, 107 F.3d 1515, 1522 (11th Cir. 1997).

Moreover, the Supreme Court specifically held, in Almendarez-Torres, that §

1326(b) is a penalty provision, authorizing a court to increase the sentence for a

recidivist, but does not define a separate crime.

       Finally, we do not find that Silva’s sentence was unreasonable under the 18

U.S.C. § 3553(a). 1 A sentencing court must consider the factors found in 18

U.S.C. § 3553(a):

       (1) the nature and circumstances of the offense and the history and
       characteristics of the defendant; (2) the need for the sentence imposed
       - (A) to reflect the seriousness of the offense, to promote respect for
       the law, and to provide just punishment for the offense; (B) to afford
       adequate deterrence to criminal conduct; (C) to protect the public
       from further crimes of the defendant; and (D) to provide the defendant
       with needed educational or vocational training, medical care, or other
       correctional treatment in the most effective manner; (3) the kinds of
       sentences available; (4) the kinds of sentence and the sentencing range
       established . . . [from the Guidelines]; and (5) any pertinent policy


       1
        We reject the government’s argument that this court lacks jurisdiction to entertain Silva;s
argument that the sentence imposed was unreasonable. See United States v. Martinez, No. 05-
12706, 2006 WL 39541 (11th Cir. Jan. 9, 2006).

                                                3
        statement . . . issued by the Sentencing Commission . . . .

We find that the sentence in this case was not unreasonable under the facts of this

case.

        AFFIRMED.




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