                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                                                                FILED
                      ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                          November 15, 2005
                             No. 05-11397
                                                         THOMAS K. KAHN
                         Non-Argument Calendar               CLERK
                       ________________________

                  D. C. Docket No. 04-00188-CR-19JGG

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

ANTONIO HERNANDEZ-MARTINEZ,
a.k.a. Antonio Martinez-Hernandez,
a.k.a. Antonio Gabone,

                                                         Defendant-Appellant.


                       ________________________

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

                           (November 15, 2005)

Before DUBINA, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
       Appellant Antonio Hernandez-Martinez appeals his 70-month sentence for

illegal re-entry into the United States, in violation of 8 U.S.C. §§ 1326(a) and (b).

The two issues on appeal are: (1) whether the district court violated Hernandez-

Martinez’s Fifth and Sixth Amendment rights in enhancing his base offense level,

pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii), based on his prior conviction for

robbery, which was not charged in his indictment or admitted, and (2) whether the

district court erred in denying Hernandez-Martinez’s motion for a downward

departure presented to avoid a sentencing disparity between defendants who are

sentenced under the fast-track program 1 and those who have no such program in

their districts.

I.     Enhancement for a Prior Conviction, U.S.S.G. § 2L1.2(b)(1)(A)(ii)

       Hernandez-Martinez argues that his sentence is unconstitutional because the

court sentenced him based upon facts that were not charged in the indictment,

found by a jury, or admitted at the plea colloquy. While he concedes that we have

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

L. Ed. 2d 350 (1998) is still valid law, Hernandez-Martinez maintains that its

       1
          As the First Circuit recently explained, U.S.S.G. § 5K3.1 provides for the application of
downward departures in districts that have implemented early disposition or “fast-track”
programs. United States v. Melendez-Torres, 420 F.3d 45, 52 (1st Cir. 2005). Fast-track
programs enable districts to accommodate a large number of immigration cases by allowing
district courts to grant up to a four-level downward departure in exchange for the waiver of
certain procedural rights by the defendant. Id. “[T]hese programs are authorized only when they
are clearly warranted by local conditions within a particular district.” Id.

                                                 2
narrow holding is distinguishable from the facts of his case because (1) he did not

admit to his prior robbery conviction, and (2) he did not stipulate that his prior

convictions constituted “crimes of violence” or “aggravated felonies.” Hernandez-

Martinez also contends that we should not apply Almendarez-Torres to his case

because (1) it has been discredited by the Supreme Court, and (2) our holding in

Jefferson County v. Acker, 210 F.3d 1317, 1320 (11th Cir. 2000), concerning when

we should follow Supreme Court cases that are distinguishable, establishes that we

are free to apply the reasoning of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.

2348, 147 L. Ed. 2d 435 (2000), to his case. Hernandez-Martinez further asserts

that, because the court added three points to his criminal history score based on its

finding that he committed the instant offense while on supervised release and

within two years of his release from imprisonment, his sentence violated United

States v. Booker, 543 U.S., 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005) and his

constitutional rights.

      Hernandez-Martinez properly preserved his claim in the district court by

objecting under Apprendi, Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531,

159 L. Ed. 2d 403 (2004), and Booker to the use of his prior conviction to enhance

his sentence. See United States v. Dowling, 403 F.3d 1242, 1245-46 (11th Cir.),

cert. denied, ___ S. Ct. ___, (U.S. Oct. 11, 2005) (No. 05-6234) (explaining the



                                           3
ways an appellant can preserve a Booker claim). Since Hernandez-Martinez timely

raised a Booker objection in the district court, we review the claim on appeal de

novo, but reverse only for harmful error. See United States v. Paz, 405 F.3d 946,

948 (11th Cir. 2005).

      Under U.S.S.G. § 2L1.2(b)(1)(A)(ii), a defendant’s base offense level may

be increased by 16 where the defendant has been previously deported after “a

conviction for a felony that is . . . a crime of violence . . . .” The commentary to

§ 2L1.2 includes robbery within the definition of “crime of violence.” U.S.S.G.

§ 2L1.2, comment. (n.1(B)(iii)).

      In Almendarez-Torres, the Supreme Court held that 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 a district court to use those convictions

for purposes of enhancing a sentence. Almendarez-Torres, 523 U.S. at 247, 118 S.

Ct. at 1233. The Supreme Court declined to revisit Almendarez-Torres in

Apprendi, holding that, “[o]ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S.

at 490, 120 S. Ct. at 2362-63. In Booker the Supreme Court recently reaffirmed its

holding in Apprendi. Booker, 543 U.S. at ____, 125 S. Ct. at 756. We have



                                           4
clarified that the Supreme Court's decision in Almendarez-Torres "was left

undisturbed by Apprendi, Blakely, and Booker." United States v. Shelton, 400 F.3d

1325, 1329 (11th Cir. 2005). Moreover, we have noted that, while recent

decisions, including Shepard v. United States, 544 U.S. ____, 125 S. Ct. 1254, 161

L. Ed. 2d 205 (2005), may arguably cast doubt on the future prospects of

Almendarez-Torres, the Supreme Court has not explicitly overruled Almendarez-

Torres, and, as a result, we must follow Almendarez-Torres. United States v.

Camacho-Ibarquen, 410 F.3d 1307, 1316 n.3 (11th Cir.), cert. denied, ___ S. Ct.

___ (U.S. Oct. 11, 2005) (No. 05-6178).

      In Acker we explained that where “the facts of a gravely wounded Supreme

Court decision do not line up closely with the facts before us--if it cannot be said

that decision "directly controls" our case--then, we are free to apply the reasoning

in later Supreme Court decisions to the case at hand. We are not obligated to

extend by even a micron a Supreme Court decision which that Court itself has

discredited.” Acker, 210 F.3d at 1320.

      Despite Hernandez-Martinez’s argument to the contrary, whether his case is

factually distinguishable from Almendarez-Torres is irrelevant because Hernandez-

Martinez was sentenced under an advisory Guidelines scheme and, therefore, the

court properly could have made factual findings that were not admitted to, found



                                           5
by a jury, or charged in the indictment. See United States v. Chau, No. 05-10640,

___ F.3d ___ (11th Cir. Sept. 27, 2005) (holding that nothing in Booker or the

Constitution prohibits a court from “making factual determinations that go beyond

a defendant’s admissions” in an advisory Guidelines system). Hernandez-Martinez

was sentenced on February 28, 2005, after the Supreme Court explained in Booker

that the Guidelines were advisory and, furthermore, the district court repeatedly

stated that it was aware of the advisory nature of the Guidelines. Booker, 543 U.S.

at ____, 125 S. Ct. at 756.

      Additionally, even assuming that the court used facts other than Hernandez-

Martinez’s prior convictions in calculating his criminal history score, there could

be no constitutional error because the court sentenced him pursuant to advisory

Guidelines. Therefore, Hernandez-Martinez’s arguments are without merit

because (1) we have explicitly held that Almendarez-Torres is binding precedent,

and (2) even if we were not obligated, under Acker, to follow Almendarez-Torres,

the fact that the court sentenced Hernandez-Martinez under an advisory Guidelines

scheme precludes a finding of any constitutional Booker error.

II.   Downward Departure

      Hernandez-Martinez argues on appeal that the district court improperly

refused to grant his motion for a downward departure because the court based its



                                          6
decision on his criminal history, which is a fact that courts in districts employing

fast-track programs do not consider when sentencing defendants similarly situated

to Hernandez-Martinez. He contends that the result of this sentencing disparity is

contrary to the purpose of the Guidelines that similarly situated defendants should

receive similar sentences throughout the districts. He further asserts that the

court’s refusal to depart violated his right to equal protection of the laws, under the

Fifth Amendment, because other similarly situated defendants are sentenced

pursuant to the fast-track program simply because of the location of their arrest.

Finally, he maintains that, whether under strict scrutiny or rational basis review,

the sentencing disparity violated his constitutional rights.

       Generally, we lack jurisdiction to review a district court’s denial of a motion

for a downward departure made pursuant to the Guidelines, unless the court

misapprehended its authority to apply the departure. United States v. Winingear,

422 F.3d 1241, 1245 (11th Cir. 2005). Thus, to the extent Hernandez-Martinez’s

motion was made as a traditional departure motion under the Guidelines2, the court

here did not misapprehend its authority to depart, as evidenced by the court’s

explanation of the factors on which it based its conclusion that a departure was not

warranted in Hernandez-Martinez’s case. However, we may conduct a de novo


       2
       The court may depart from the guideline range under § 5K2 for circumstances not
adequately taken into consideration in formulating the guidelines. See U.S.S.G. § 5K2(a).

                                               7
review of an otherwise final sentence if the sentence was imposed in violation of

the law. 18 U.S.C. § 3742(a)(1); United States v. Manella, 86 F.3d 201, 203 (11th

Cir. 1996). Because Hernandez-Martinez argues that his sentence violated his

constitutional rights, we have jurisdiction, under 18 U.S.C. § 3742(a)(1), to

determine whether the sentence was imposed in violation of the law.

      On the facts here, and assuming without deciding, as the district court did,

that Hernandez-Martinez would have been eligible for sentencing under a fast-

track program or should be considered for a departure to eliminate any disparity,

the factors in his case suggest that a downward departure is still not warranted.

Hernandez-Martinez had twice before been deported from the United States, had

committed burglary and robbery, and had committed the instant offense while he

was on supervised release and within two years of his last release from prison.

Based on Hernandez-Martinez’s criminal history, then, a downward departure was

not appropriate, even under a fast-track program.

      For the foregoing reasons, we conclude that the district court did not violate

Hernandez-Martinez’s constitutional rights in enhancing his sentence based on his

prior robbery conviction nor did the court err in denying his motion for a

downward departure. Accordingly, we affirm Hernandez-Martinez’s sentence.

      AFFIRMED.



                                          8
