                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT            FILED
                          ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                No. 06-14770                    APR 4, 2007
                            Non-Argument Calendar             THOMAS K. KAHN
                          ________________________                CLERK


                   D. C. Docket No. 06-00149-CR-T-30-MAP

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

GUSTAVO ADOLFO ORTIZ-WILLIAMS,

                                                             Defendant-Appellant.

                          ________________________

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

                                 (April 4, 2007)

Before ANDERSON, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

      Gustavo Adolfo Ortiz-Williams appeals his conviction and sentence for re-

entering the country after being previously convicted of an aggravated felony and

deported, in violation of 8 U.S.C. §§ 1326(a), 1326(b)(2). He argues that § 1326 is
facially unconstitutional because it allows judicial fact-finding into the nature and

quantity of prior convictions -- facts not charged in the indictment, admitted by the

defendant, or found beyond a reasonable doubt by the fact-finder -- to support a

higher statutory maximum punishment. He also asserts that § 1326 violates the

Double Jeopardy Clause because the increased statutory maximum results in

multiple punishments for the same offense (his prior aggravated felony). Ortiz-

Williams preserved his constitutional claims below. Accordingly, we engage in a

de novo review of those claims. United States v. Paz, 405 F.3d 946, 948 (11th Cir.

2005). After careful review, we affirm.

      The Immigration and Nationality Act, as codified, in pertinent part, at 8

U.S.C. § 1326, delineates criminal penalties for an alien who, after being removed,

re-enters the United States without receiving the prior approval of the Attorney

General or his successor, the Secretary of the Department of Homeland Security.

If such an alien was removed subsequent to conviction for an aggravated felony,

the statutory maximum term of imprisonment increases from two years to twenty

years. 8 U.S.C. §§ 1326(a), 1326(b)(2).

      First, Ortiz-Williams argues his Sixth Amendment rights were violated when

the district court sentenced him above the unenhanced two-year statutory

maximum based on facts not charged in the indictment or admitted by Ortiz-



                                          2
Williams. Although he recognizes that the Supreme Court has explicitly approved

such enhancements, he suggests that whether prior convictions should be treated as

elements of an offense under recidivism statutes, such as § 1326(b)(2), remains a

“significant question.” We disagree.

       The Supreme Court has held that the government need not allege in the

indictment nor prove beyond a reasonable doubt the fact that a defendant had prior

convictions in order for a district court to enhance a defendant’s sentence based on

those convictions. Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998).1

More recently, in United States v. Booker, 543 U.S. 220 (2005), the Court

reiterated its holding in Almendarez-Torres: “Any 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 beyond a reasonable doubt.” 543

U.S. at 244 (emphasis added).

       We have observed that the Almendarez-Torres decision “was left

undisturbed by Apprendi, Blakely [v. Washington, 542 U.S. 296 (2004)], and

Booker.” United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005). And we

have consistently rejected the argument that district courts err by basing a sentence


       1
         Notably, Almendarez-Torres involved a challenge to the exact penalty provision at issue
in the instant case -- 8 U.S.C. § 1326(b)(2).

                                               3
enhancement on a prior conviction that is neither proved beyond a reasonable

doubt to a jury nor admitted by the defendant. See, e.g., United States v. Greer, 440

F.3d 1267, 1273-76 (11th Cir. 2006) (collecting cases); United States v. Camacho-

Ibarquen, 410 F.3d 1307, 1315-16 (11th Cir.), cert. denied, 126 S. Ct. 457 (2005);

United States v. Orduno-Mireles, 405 F.3d 960, 962-63 (11th Cir.), cert. denied,

126 S. Ct. 223 (2005). We reject Ortiz-Williams’s invitation to revisit this issue

yet again. Pursuant to Almendarez-Torres and our uniform line of cases applying

it, the district court did not err in sentencing Ortiz-Williams based on his prior

conviction for an aggravated felony.

      We    likewise   are   unpersuaded       by   Ortiz-Williams’s   double-jeopardy

challenge to § 1326(b)(2). It is well-established that sentencing enhancements for

prior criminal conduct do not constitute multiple punishment for the prior offenses,

and the consideration of prior convictions in sentencing does not implicate or

violate the Double Jeopardy Clause. United States v. Fuentes, 107 F.3d 1515,

1522 (11th Cir. 1997). In short, the district court’s imposition of sentence did not

implicate, or violate, the Double Jeopardy Clause.

      AFFIRMED.




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