                                                            [DO NOT PUBLISH]




               IN THE UNITED STATES COURT OF APPEALS
                                                            FILED
                        FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                          ________________________   ELEVENTH CIRCUIT
                                                         JUNE 3, 2008
                                                      THOMAS K. KAHN
                                No. 07-15851
                                                           CLERK
                            Non-Argument Calendar
                          ________________________

                    D. C. Docket No. 07-00153-CR-J-33-JRK

UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                        versus

JUAN BELTRAN-GABITO,
a.k.a. Jose Juan Rodriguez-Beltran,
a.k.a. Juan Beltran,
a.k.a. Juan Beltran-Gavito,

                                                        Defendant-Appellant.

                          ________________________

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

                                      (June 3, 2008)

Before TJOFLAT, BLACK and WILSON, Circuit Judges.

PER CURIAM:
      Juan Beltran-Gabito, a Mexican citizen, appeals his 49-month sentence for

entering the United States after being deported or removed, in violation of 8 U.S.C.

§ 1326.

      On appeal, Beltran-Gabito first argues that his 49-month sentence is illegal

because he pled to simple reentry pursuant to 8 U.S.C. § 1326(a), which carries a

statutory maximum sentence of 2 years’ imprisonment, as opposed to reentry after

deportation following an aggravated felony under § 1326(b). He acknowledges

that in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L.

Ed. 2d 350 (1998), the Supreme Court held that a defendant’s prior “aggravated

felony” conviction need not be alleged in an indictment for a court to enhance the

defendant’s sentence under § 1326(b), but he argues that more recent cases have

indicated that a majority of the Supreme Court no longer supports the holding of

Almendarez-Torres, thereby calling its continued validity into question.

      Sixth Amendment challenges to a sentences raised for the first time on

appeal are reviewed only for plain error. United States v. Smith, 480 F.3d 1277,

1279 (11th Cir.), cert. denied, 128 S. Ct. 175, 169 L. Ed. 2d 119 (2007). Under

plain error review, we have only “a limited power to correct errors that were

forfeited because [they were] not timely raised in [the] district court.” United

States v. Olano, 507 U.S. 725, 731, 113 S. Ct. 1770, 1776, 123 L. Ed. 2d 508



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(1993). We may not correct an error that the defendant failed to raise in the district

court unless there is: “(1) error, (2) that is plain, and (3) that affects substantial

rights.” United States v. Cotton, 535 U.S. 625, 631, 122 S. Ct. 1781, 1785, 152 L.

Ed. 2d 860 (2002) (internal quotations marks omitted). “If all three conditions are

met, an appellate court may then exercise its discretion to notice a forfeited error,

but only if (4) the error seriously affect[s] the fairness, integrity, or public

reputation of judicial proceedings.” Id. (internal quotations marks omitted).

       The Supreme Court has instructed that plain error review should be

exercised “sparingly,” Jones v. United States, 527 U.S. 373, 389, 119 S. Ct. 2090,

2102, 144 L. Ed. 2d 370 (1999), and only “in those circumstances in which a

miscarriage of justice would otherwise result,” Olano, 507 U.S. at 736, 113 S. Ct.

at 1779 (internal quotation marks omitted). Similarly, we have held that “[t]he

plain error rule places a daunting obstacle before [the appellant].” United States v.

Pielago, 135 F.3d 703, 708 (11th Cir. 1998).

       It is illegal to enter the United States after being deported, and the offense

normally carries a maximum sentence of two years’ imprisonment. 8 U.S.C. §

1326(a). If, however, the alien was removed subsequent to a conviction for an

aggravated felony, the offense carries a maximum sentence of 20 years’

imprisonment. 8 U.S.C. § 1326(b)(2). Beltran-Gabito does not challenge the



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conclusion that his prior conviction constitutes an aggravated felony.

      In Almendarez-Torres, the Supreme Court held the government need not

allege in its indictment and need not prove beyond a reasonable doubt that a

defendant had prior convictions in order for the district court to use those

convictions for purposes of enhancing a sentence. Almendarez-Torres, 523 U.S. at

235-39, 118 S. Ct. at 1226-29. The Court also clarified that § 1326(b)(2) sets forth

a sentencing factor as to the offense described in § 1326(a) and “not a separate

criminal offense.” Id. at 235, 118 S. Ct. at 1226. The Court has also stated that its

“decisions remain binding precedent until [it] see[s] fit to reconsider them,

regardless of whether subsequent cases have raised doubts about their continuing

vitality.” Hohn v. United States, 524 U.S. 236, 252-53, 118 S. Ct. 1969, 1978, 141

L. Ed. 2d 242 (1998). We have held, moreover, that while recent decisions of the

Supreme Court may have arguably cast doubt on Almendarez-Torres, the case is

still controlling precedent because the Supreme Court has not explicitly overruled

it. United States v. Camacho-Ibarquen, 410 F.3d 1307, 1316 n.3 (11th Cir. 2005)

(per curiam).

      Thus, because Almendarez-Torres remains good law, the district court did

not err, much less plainly err, in increasing Beltran-Gabito’s offense level due to

the aggravated felony.



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      Beltran-Gabito next argues that even if his sentence was not

unconstitutionally enhanced, we must vacate his sentence because the district court

orally pronounced a 49-month sentence but imposed a 51-month sentence in its

written judgment. Beltran-Gabito is correct that the written judgment erroneously

pronounced a sentence of 51 months’ imprisonment. That judgment has since been

amended, however, to reflect the same 49-month sentence that the court

pronounced orally at his sentencing hearing. Because the court unambiguously

pronounced a judgment of 49 months’ imprisonment orally, it was allowed to

correct its clerical error. Therefore, Beltran-Gabito has already received the relief

that he is seeking from this Court, and the issue is no longer live, rendering his

appeal on this issue moot. See 31 Foster Children v. Bush, 329 F.3d 1255, 1263

(11th Cir. 2003) (“[A] case is moot when the issues presented are no longer live or

the parties lack a legally cognizable interest in the outcome.” (internal quotation

marks omitted)).

      For the reasons set forth above, Beltran-Gabito’s sentence is affirmed, and

his appeal is dismissed in part.

AFFIRMED IN PART, DISMISSED IN PART.




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