                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                     FILED
                         ________________________         U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                               November 21, 2005
                               No. 05-11181                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                     D. C. Docket No. 04-80139-CR-KLR

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

SAUL AGURCIA ESCOBAR,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________
                             (November 21, 2005)


Before DUBINA, HULL and WILSON, Circuit Judges.

PER CURIAM:

     Saul Agurcia Escobar appeals his 46-month sentence for the illegal re-entry
into the United States of an alien deported for the conviction of an aggravated

felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). Below, his sentence was

enhanced 16 levels, pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii), based on his prior

deportation after a conviction for a crime of violence. On appeal, Escobar argues

that the district court erred in (1) enhancing his sentence based on his prior

conviction for an aggravated felony and a crime of violence, which was not

charged in the indictment nor proven beyond a reasonable doubt at trial, in

violation of his rights under the Fifth and Sixth Amendments; and (2) treating the

United States Sentencing Guidelines (“Guidelines”) as advisory after he pled guilty

under mandatory Guidelines, in violation of his rights under the Ex Post Facto and

Due Process Clauses.

      Escobar argues on appeal that the district court unconstitutionally enhanced

his sentence by increasing his base offense level based on facts – that his previous

conviction was an aggravated felony and a crime of violence – not charged in his

indictment, found by a jury, nor admitted in his plea. Escobar contends that

Shepard v. United States, 544 U.S. __, 125 S. Ct. 1254, 161 L.E.2d 205 (2005)

impliedly overruled the Supreme Court’s holding in Almendarez-Torres v. United

States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), which held that

prior convictions did not have to be presented in the indictment. Thus, according



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to Escobar, while the “fact of” a prior conviction falls within an exception to the

rule provided and applied in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.

2348, 147 L. Ed. 2d 435 (2000), Blakely v. Washington, 542 U.S. 296, 124 S. Ct.

2531, 159 L. Ed. 2d 403 (2004), and United States v. Booker, 543 U.S. __, 125 S.

Ct. 738, 160 L. Ed. 2d 621 (2005), the “facts about” his prior conviction fall within

an exception to the exception and cannot be used to enhance his sentence. Escobar

further argues that his sentence violated his rights when the district court

retroactively applied the advisory Guidelines to a plea made under mandatory

Guidelines.

      When a defendant objects to sentence enhancements in the district court, we

review his sentence on appeal de novo, but reverse only for harmful error. United

States v. Gallegos-Aguero, 409 F.3d 1274, 1276 (11th Cir. 2005) (per curiam)

(citation omitted). We have ruled that the Apprendi /Blakely /Booker cases did not

disturb the Almendarez-Torres conclusion that the government does not need to

allege in the indictment, and does not need to prove beyond a reasonable doubt,

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

convictions for sentence enhancements. United States v. Shelton, 400 F.3d 1325,

1329 (11th Cir. 2005). Furthermore, while the Shepard Court may have cast

doubt on the Almendarez-Torres holding, the United States Supreme Court did not



                                           3
explicitly overrule it, so we are still bound by it. United States v. Camacho-

Ibarquen, 410 F.3d 1307, 1316 n.3 (11th Cir.) (per curiam), cert. denied, (U.S.

Oct. 11, 2005) (No.05-6178). Post-Booker, we reaffirmed that there is no Fifth or

Sixth Amendment violation when a district court enhances a sentence based on

prior convictions or determines whether a prior conviction is within the category of

offenses specified in § 2L1.2(b)(1)(A). Gallegos-Aguero, 409 F.3d at 1277.

Finally, we found no Ex Post Facto or Due Process Clause violations based on the

retroactive application of Booker’s remedial opinion making the Guidelines

advisory. United States v. Duncan, 400 F.3d 1297, 1306-08 (11th Cir.), cert.

denied, (U.S. Oct. 11, 2005) (No. 05-5467).

      Accordingly, there is no Fifth or Sixth Amendment violation when a district

court enhances a sentence based on a prior conviction not pled in the indictment or

on a determination that a prior conviction falls within the category of offenses that

allows for an enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). See Gallegos-

Aguero, 409 F.3d at 1277. Moreover, there is no Ex Post Facto or Due Process

Clause violation based on the application of the Guidelines as advisory. See

Duncan, 400 F.3d at 1306-08.

      Upon review of the pre-sentence investigation report, the record below, and

hearing transcripts, and upon consideration of the briefs of the parties, we find no



                                          4
reversible error. Therefore, Escobar’s sentence is affirmed.

      AFFIRMED.




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