             Case: 14-13622   Date Filed: 08/13/2015   Page: 1 of 4


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 14-13622
                           Non-Argument Calendar
                         ________________________

                 D.C. Docket No. 5:13-cr-00077-CAR-CHW-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                    versus

ARMANDO GONZALEZ-MARTINEZ,

                                                           Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Georgia
                        ________________________

                               (August 13, 2015)

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     Armando Gonzalez Martinez appeals his 33-month sentence for illegal re-

entry into the United States after being removed, in violation of 8 U.S.C. §

1326(a). On appeal, he argues that his sentence exceeds the two-year statutory
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maximum, because the government neglected to specifically charge in his

indictment a violation of § 1326(b)(2), pursuant to which his sentence was

enhanced based on a prior aggravated felony conviction. He concedes that his

argument has been “rejected” by the Supreme Court in Almendarez-Torres v.

United States, 523 U.S. 224 (1998), but notes that he nevertheless is raising the

issue to preserve it for future review in light of the Supreme Court’s recent

indications that it may reconsider Almendarez-Torres’s holding. After careful

review, we affirm.

      We review constitutional sentencing issues de novo. United States v. Steed,

548 F.3d 961, 978 (11th Cir. 2008). Under § 1326(a), a two-year maximum

sentence applies for an alien who illegally re-enters the United States following

removal. 8 U.S.C. § 1326(a). Nevertheless, pursuant to § 1326(b)(2), if an alien’s

initial removal was subsequent to an aggravated felony conviction, the applicable

maximum sentence is 20 years. Id. § 1326(b)(2).

      In Almendarez-Torres, the Supreme Court held that, in the context of §

1326(b)(2)’s penalty provision, a defendant’s prior aggravated felony conviction is

merely a sentencing factor that need not be charged in an indictment or proven to a

jury beyond a reasonable doubt. Almendarez-Torres, 523 U.S. at 226-27. In

Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court subsequently

expressed some doubt as to whether Almendarez-Torres was correctly decided, but

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it expressly declined to revisit that earlier decision. Apprendi, 530 U.S. at 489-90.

In excepting the Almendarez-Torres holding, the Apprendi Court ruled 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.” Id. at 490.

      Thereafter, the Supreme Court revisited the issues underlying Almendarez-

Torres and Apprendi, this time dealing with facts that served to impose a statutory

minimum sentence. See Alleyne v. United States, 570 U.S. ___, ___, 133 S.Ct.

2151, 2155 (2013). In Alleyne, the Court ruled more broadly that “[a]ny fact that,

by law, increases the penalty for a crime is an ‘element’ that must be submitted to

the jury and found beyond a reasonable doubt.” Id. However, because the parties

in Alleyne did not address Almendarez-Torres’s validity, the Court expressly said

that it did not revisit that decision. Alleyne, 133 S.Ct. at 2160 n.1. We recently

recognized that while there is some tension between Alleyne and Apprendi on the

one hand, and Almendarez-Torres on the other, “[n]othing in the facts or holding

of Alleyne indicates that it eliminated Apprendi’s exception for judicial findings of

prior convictions that increase a criminal penalty.” United States v. Harris, 741

F.3d 1245, 1249-50 (11th Cir. 2014). We further recognized that we were not free

to overrule Almendarez-Torres, and that, until the Supreme Court overrules that

decision, we are bound to follow it. Id. at 1250.

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      Here, Almendarez-Torres forecloses the instant sentencing enhancement

issue that Gonzalez-Martinez raises on appeal, as he himself concedes in his

appellate brief while noting that he is raising the issue to preserve it for future

review. Almendarez-Torres expressly held that a defendant’s prior aggravated

felony conviction is a sentencing factor that need not be charged in an indictment

before it can be used to enhance his sentence under § 1326(b)(2)’s penalty

provision. 523 U.S. at 226-27. Thus, Almendarez-Torres’s holding precludes

Gonzalez-Martinez’s sole claim on appeal that his sentence was unlawful because

the government had neglected to specifically charge § 1326(b)(2) in his indictment.

As we’ve said, Almendarez-Torres is binding unless and until the Supreme Court

overrules it. See Harris, 741 F.3d at 1249-50.

      AFFIRMED.




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