                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT           FILED
                        ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                OCT 17, 2006
                               No. 06-13009
                                                              THOMAS K. KAHN
                           Non-Argument Calendar
                                                                  CLERK
                         ________________________

                     D. C. Docket No. 06-80009-CR-DMM

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                     versus

JUAN GUTIERREZ-MIRA,

                                                            Defendant-Appellant.


                         ________________________

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

                              (October 17, 2006)

Before MARCUS, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

     Juan Gutierrez-Mira pleaded guilty to illegal re-entry after deportation in
violation of 8 U.S.C. § 1326. At the change-of-plea hearing, the Government

alleged that Gutierrez-Mira had been found to be in the United States unlawfully

after deportation and that he had previously been convicted of forcible rape in

California. Gutierrez-Mira admitted the accuracy of the proffer. When defense

counsel argued that the prior conviction was not an element of the charged

offense, the district court reminded counsel that Gutierrez-Mira had admitted to

the prior conviction and added that if the defendant “want[ed] to debate those

issues” he should reconsider the plea as it was likely that the prior conviction

would impact sentencing. Counsel indicated that she was only seeking to preserve

a legal objection. The court then accepted the plea and found Gutierrez-Mira

guilty.

      The probation officer prepared a presentence investigation report (PSI),

assigning a base level of 8 under U.S.S.G. § 2L1.2 with a 16-level enhancement

for the prior conviction under § 2L1.2(b)(1)(A). The report also included a 3-level

reduction for acceptance of responsibility, giving an adjusted offense level of 21.

The report categorized Gutierrez-Mira’s criminal history as Category II given the

prior conviction for forcible rape. The resulting guideline range was 41 to 51

months imprisonment.

      Gutierrez-Mira objected to the PSI’s 16-level enhancement again, arguing

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that the indictment did not refer to the prior conviction and thus, citing United

States v. Booker, 543 U.S. 220 (2005), the prior conviction cannot be taken into

account for sentencing. The district court overruled the objection and sentenced

Gutierrez-Mira to a term of 46 months.

      Gutierrez-Mira appeals his sentence, claiming that the 16-level

enhancement is unconstitutional under the Sixth Amendment because it is based

on his prior conviction that was neither charged in the indictment nor proved to a

jury beyond a reasonable doubt. He also argues that the district court violated the

holding in Shepard v. United States, 544 U.S. 13 (2005) by considering facts

about his prior conviction (that the conviction was for an aggravated felony) rather

than the fact of his prior conviction.

      We review constitutional challenges to sentencing de novo, but will reverse

only if the error was harmful. United States v. Paz, 405 F.3d 946, 948 (11th Cir.

2005).

      There is no merit to Gutierrez-Mira’s arguments. First, the Supreme Court

specifically has held that a prior conviction is a sentencing factor that need not be

charged in the indictment or proved to a jury. Almendarez-Torres v. United

States, 523 U.S. 224, 228 (1998); See Booker, 543 U.S. at 245 (2005) (affirming

that a prior conviction is a sentencing factor). This court has consistently held

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that Almendarez-Torres remains good law and is bound by it until it is explicitly

overruled by the Supreme Court. See United States v. Dowd, 451 F.3d 1244, 1253

(11th Cir. 2006), petition for cert. filed (Aug. 24, 2006) (No. 06-6164); United

States v. Gibson, 434 F.3d 1234, 1246 (11th Cir. 2006); United States v. Martinez,

434 F.3d 1318, 1323 (11th Cir. 2006).

      Second, contrary to Gutierrez-Mira’s argument, the district court did not

violate Shepard by looking beyond the facts of the conviction to determine

whether the enhancement applied. Rather, the district court merely referred to the

commentary in U.S.S.G. § 2L1.2, that categorizes rape as a crime of violence.

U.S.S.G. § 2L1.2, cmt. (n.1(B)(iii)). See United States v. Houston, 456 F.3d 1328,

1340 (11th Cir. 2006) (holding that the court properly considered the defendant’s

prior convictions and properly categorized the convictions as “crimes of violence”

under U.S.S.G. § 4B1.1). Unlike the facts of Shepard where the district court had

been asked to review police documents concerning the nature of the underlying

offense, here the district court only took into account the prior conviction and

applied the correct enhancement under the Guidelines.

      Moreover, Gutierrez-Mira’s acceptance of the factual proffer when he plead

guilty constitutes an admission of the prior conviction sufficient to apply the

enhancement. United States v. Williams, 444 F.3d 1286, 1308 (11th Cir. 2006)

                                          4
(holding that the defendant’s admission of the factual basis for his sentence

eliminated any Booker-error).

      For the above reasons, we AFFIRM the district court’s sentence.




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