                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             Sept. 23, 2009
                              No. 09-11959                 THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                    D. C. Docket No. 09-80010-CR-KLR

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

OLBIN NEFTALI MEDINA,

                                                          Defendant-Appellant.


                        ________________________

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

                            (September 23, 2009)

Before DUBINA, Chief Judge, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

     Appellant Olbin Neftali Medina appeals his 41-month sentence imposed
following his guilty plea to illegal reentry into the United States after deportation,

in violation of 8 U.S.C. § 1326 (a), (b)(2). On appeal, Medina alleges a Fifth and

Sixth Amendment violation on the ground that the enhancement of his sentence

due to an increase in the base offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)

was based on a predicate aggravated felony that was neither charged in the

indictment nor proven to a jury beyond a reasonable doubt.

      Because Medina properly raised his objections to the enhancement of his

sentence to the district court, we review the sentence de novo, but will only reverse

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

      A district court does not violate the Sixth Amendment when conducting

judicial fact finding, so long as it applies the Sentencing Guidelines as advisory.

United States v. Dudley, 463 F.3d 1221, 1228 (11th Cir. 2006); United States v.

Rodriguez, 398 F.3d 1291, 1300 (11th Cir. 2005) (holding that extra-verdict

enhancements used “in a non-mandatory guidelines system [are] constitutionally

permissible”).

      Medina’s challenge on appeal is limited to the increase in his base offense

level pursuant to U.S.S.G. § 2L1.2(b)(1)(A). However, to the extent he also seeks

to challenge the statutory enhancement in 8 U.S.C. § 1326(b)(2), that challenge is

foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United States,



                                           2
523 U.S. 224, 246-47, 118 S. Ct. 1219, 1232-33, 140 L. Ed. 2d 350 (1998)

(holding that neither the statute nor the Constitution require the government to

charge a prior offense in the indictment or prove it beyond a reasonable doubt

when it is being used to increase a sentence).

      Moreover, at the sentencing hearing, the district court acknowledged that the

Sentencing Guidelines were advisory when it pronounced Medina’s sentence.

Since the court applied the Sentencing Guidelines in an advisory manner, the court

did not violate the Fifth and Sixth Amendments by enhancing Medina’s sentence

based on a prior conviction that was not alleged in the indictment. See Dudley, 463

F.3d at 1228. Accordingly, we affirm Medina’s sentence.

      AFFIRMED.




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