          United States Court of Appeals
                     For the First Circuit


No. 13-1980

                   UNITED STATES OF AMERICA,

                           Appellee,

                               v.

                 MAURO EDULIO JIMÉNEZ-BANEGAS,

                     Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

          [Hon. John A. Woodcock, U.S. District Judge]


                             Before

                 Lynch, Torruella, and Barron,
                        Circuit Judges.



     Sharon Fray-Witzer, on brief for appellant.
     Renée M. Bunker, Assistant United States Attorney, and
Thomas E. Delahanty II, United States Attorney, on brief for
appellee.




                         June 24, 2015
            TORRUELLA,          Circuit    Judge.      Defendant,    Mauro    Edulio

Jiménez-Banegas ("Jiménez"), pleaded guilty to illegal reentry into

the United States pursuant to 8 U.S.C. § 1326.                At sentencing, the

district court determined that the applicable statutory maximum

imprisonment sentence was twenty years under 8 U.S.C. § 1326(b)(2)

because     Jiménez       had    illegally       reentered   the    United    States

subsequent to deportation after a conviction for an aggravated

felony.     The district court also enhanced Jiménez's Guidelines

sentencing range ("GSR") pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii)

upon determining that Jiménez had been previously deported or

unlawfully remained in the United States after a conviction for a

felony    that   is   a    crime    of     violence.     Ultimately,    the    court

sentenced him to fifty-seven months of imprisonment.                         Jiménez

challenges his sentence, arguing that the fact of his prior

conviction for an aggravated felony had to be alleged in the

indictment and proven beyond a reasonable doubt in order for him to

be sentenced to a term greater than the two-year statutory maximum

established in 8 U.S.C. § 1326(a). Finding that Jiménez's argument

is foreclosed by binding Supreme Court precedent, we affirm his

sentence.

                                      I.    Facts

            Because Jiménez pleaded guilty, our discussion of the

facts is drawn from the change-of-plea colloquy, the Presentence

Investigation Report ("PSR"), and the transcript of the sentencing


                                           -2-
hearing.    See United States v. Cintrón-Echautegui, 604 F.3d 1, 2

(1st Cir. 2010).

            This case is the result of Jiménez's -- a Honduran

citizen -- repeated attempts to illegally enter and remain in this

country, in violation of our immigration laws.   He was first found

to have illegally entered the United States in 1989, and was

deported. Determined to live here, Jiménez illegally reentered the

United States.

            During his illegal stays in the United States, Jiménez

also had brushes with the law in areas other than immigration.   As

a result, he was arrested in 2003 and, in 2004, he pleaded guilty

to unlawful entry into a woman's house and attempted third degree

sexual abuse in the Washington D.C., Superior Court.   Case No. F-

01729-03.    He was sentenced to ninety days incarceration for the

unlawful entry and eighteen months incarceration for attempted

third degree sexual abuse.1     Upon his release from custody in

September 2004, Jiménez was again deported to Honduras.

            In January 2005, Jiménez was again found in the United

States and was arrested.     He pleaded guilty to illegal reentry

subsequent to an aggravated felony conviction -- the attempted



1
  In 2004, while Jiménez was in custody in relation to Case No. F-
01729-03, the United States Immigration and Customs Enforcement
learned that Jiménez had illegally reentered the United States.
For this offense, he was convicted and sentenced to time served, to
be served concurrently to the sentence imposed in Case No. F-01729-
03, followed by one year of supervised release and deportation.

                                -3-
third degree sexual abuse -- in violation of 8 U.S.C. § 1326.            The

district court applied a sixteen-level enhancement to his base

offense level, pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii), based on

his prior conviction for a crime of violence -- the attempted third

degree sexual abuse.      He was ultimately sentenced to forty-six

months of imprisonment, followed by three years of supervised

release, and deportation.      Jiménez appealed the district court's

enhancement of his GSR and its determination that his prior

conviction for attempted third degree sexual abuse was a crime of

violence.    The Fifth Circuit affirmed his sentence.      United States

v. Jiménez-Banegas, 209 F. App'x 384 (5th Cir. 2006).

             On July 30, 2012, and pertinent to this appeal, Jiménez

was once again found in the United States.            He was arrested by

United States Border Patrol Agents in Maine2 and charged with

violating 8 U.S.C. §§ 1326(a) and (b)(2) because he was found in

the United States without authorization after having been removed

from   the   United   States   "subsequent   to   a   conviction   for    an

aggravated felony" as described in 8 U.S.C. § 1101(a)(43).         During

Jiménez's initial appearance, the court advised him that "[t]his is

an offense that has a potential penalty of up to 20 years[']


2
   Jiménez and another man, José Reina, were stopped for being in
a vehicle which had no visible license plate. When stopped, both
men produced Honduran identification, and Jiménez provided a false
name. The United States Border Patrol conducted a record check
using Jiménez's fingerprints, which revealed his true identity and
that he had been previously removed from the United States on
multiple occasions.

                                   -4-
imprisonment."      Jiménez was asked if he understood the charges

against him and the potential penalties, to which he replied in the

affirmative.

           On August 16, 2012, a one-count indictment was filed.

The indictment caption cited 8 U.S.C. §§ 1326(a) and (b)(2) as the

relevant statutory provisions, recounted Jiménez's three prior

deportations from the United States, and stated that he had

violated   "Title   8,   United   States   Code,   Sections   1326(a)   and

(b)(2)."   It, however, did not specifically mention that any of

Jiménez's prior deportations occurred after a conviction for an

aggravated felony.

           On November 20, 2012, at the change of plea hearing, the

district court advised Jiménez that "by pleading guilty to this

crime," he was "subject to being placed in jail for a period not to

exceed twenty years," that he was "subject to being placed on

supervised release for a period not to exceed three years," and

that he could be deported.          Asked if he understood, Jiménez

responded in the affirmative.        Jiménez then entered a straight

guilty plea to Count One of the indictment, which the district

court accepted.

            The PSR was disclosed to the parties on January 31,

2013.   It stated that the maximum term of imprisonment was twenty

years pursuant to 8 U.S.C. § 1326(b)(2).           According to the PSR,

Jiménez's base offense level was eight under U.S.S.G. § 2L1.2(a).


                                    -5-
The   PSR    applied      a   sixteen-level     enhancement      under      U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) because Jiménez was convicted in 2004 of

attempted third degree sexual abuse and sentenced to eighteen

months' incarceration, which rendered that offense a crime of

violence    under    the      Sentencing    Guidelines.       The    PSR    did    not

recommend an acceptance-of-responsibility reduction because Jiménez

refused to discuss the pending federal offense with the probation

officer.     This resulted in a total offense level of twenty-four.

Since Jiménez has a criminal history category of IV, the PSR

calculated    a     GSR    of   seventy-seven        to   ninety-six      months    of

imprisonment and a term of supervised release of not more than

three years.

             In   February      2013,      Jiménez    objected      to    the   PSR's

recommendation to deny a three level reduction for acceptance of

responsibility.        He claimed that his reluctance to discuss the

offense with the probation officer was not due to lack of remorse,

but rather due to his attorney's advice not to discuss the case

with anyone to avoid miscommunication because of Jiménez's language

barrier.

             In his sentencing memorandum filed on June 20, 2013,

Jiménez admitted his 2004 conviction and acknowledged that he could

not challenge the legality of that conviction.                           He alleged,

however, that 8 U.S.C. § 1326(a) sets a two-year maximum period of

incarceration for reentering the United States after having been


                                        -6-
deported and that sentencing him to more than two years pursuant to

the sentence enhancement provision of 8 U.S.C. § 1326(b)(2) would

"violate the Fifth Amendment Due Process and Indictment Clauses, as

well as the Sixth Amendment's jury trial provision," because

"[n]either the Indictment nor the Government Version in this case

listed an aggravated felony as being present in [his] case."

             In   response,   the   Government   asserted   that     under

Almendarez-Torres v. United States, 523 U.S. 224 (1998), the fact

of a prior conviction need not be alleged in an indictment or

submitted to a jury, and that, in any event, the indictment in this

case alleged a violation of 8 U.S.C. §§ 1326(a) and (b)(2) and the

latter prescribes a statutory maximum of twenty years.             It also

emphasized that Jiménez was advised at the change-of-plea hearing

that the statutory maximum was twenty years, and that he admitted

the   fact   of   the   aggravated-felony   conviction   that   triggered

§ 1326(b)(2).

             The sentencing hearing took place on August 2, 2013.

There, Jiménez conceded that his 2004 conviction of attempted third

degree sexual abuse was "valid," and that it was a conviction for

an "aggravated felony."       The district court asked Jiménez whether

he was moving to withdraw his guilty plea, to which Jiménez

responded in the negative.

             The district court held that Jiménez's argument regarding

the statutory maximum penalty was "foreclosed by the current state


                                    -7-
of Supreme Court authority."         The court noted that Jiménez was on

notice of the enhanced penalty before he pleaded guilty and that

the court had also advised him of the increased penalty during the

change-of-plea proceedings.          Thus, it concluded that the twenty

year maximum under § 1326(b)(2) was applicable.

             The district court determined that Jiménez's base offense

level was eight under U.S.S.G. § 2L1.2(a), and that a sixteen level

enhancement was appropriate under U.S.S.G. § 2L1.2(b)(1)(A)(ii)

because Jiménez had reentered the United States subsequent to

having been deported after a conviction for "a crime of violence."

The court granted a three-level reduction for Jiménez's acceptance

of responsibility, resulting in a total offense level of twenty-

one.   This, in conjunction to Jiménez's criminal history category

of IV, yielded a GSR of fifty-seven to seventy-one months of

imprisonment.

             The   court   then    considered     the   18   U.S.C.   §   3553(a)

sentencing     factors     and    noted    that   Jiménez's    non-immigration

offenses separated him from most defendants appearing in court on

immigration charges.        It also highlighted that Jiménez "has been

unusually determined to return to the United States and . . . break

the immigration laws of this country," and that, since his last

sentence of forty-six months did not deter him, it would choose a

higher sentence. Ultimately, the court sentenced Jiménez to fifty-




                                          -8-
seven months of imprisonment, at the bottom of the GSR.       This

timely appeal followed.

                          II.   Discussion

           Jiménez alleges that because neither the indictment nor

the "Prosecution Version" claimed that he was convicted of any

"aggravated felony" prior to being deported, § 1326(b)(2) is

inapplicable and his sentence greater than the two-year maximum

allowed under § 1326(a) violates his Fifth and Sixth Amendment

rights.   We disagree.

           Subsection (a) of 8 U.S.C. § 1326 "forbids an alien who

once was deported to return to the United States without special

permission, and it authorizes a prison term of up to, but no more

than, two years." Almendarez-Torres, 523 U.S. at 226. "Subsection

(b)(2) of the same section authorizes a prison term of up to, but

no more than, 20 years for 'any alien described' in subsection (a),

if the initial 'deportation was subsequent to a conviction for

commission of an aggravated felony.'"        Id. (quoting 8 U.S.C.

§ 1326(b)(2)).   Jiménez admits that he was deported subsequent to

his conviction in 2004 for attempted third degree sexual abuse,

which he concedes was a valid conviction for an aggravated felony.

He also admits that he illegally returned to the United States

after this conviction and subsequent deportation.       He claims,

however, that the enhanced penalty provision of § 1326(b)(2) is

inapplicable because his aggravated felony conviction was not


                                 -9-
included in his indictment or in the "Prosecution Version" of the

facts giving rise to the offense.             His argument is foreclosed by

binding Supreme Court precedent.

           In     Almendarez-Torres,         the   defendant     alleged    that

§ 1326(b)(2) defined a crime separate from § 1326(a) and that his

aggravated felony conviction was an element of the crime defined in

subsection (b)(2), which needed to be mentioned in the indictment.

Almendarez-Torres, 523 U.S. at 224.            He claimed that because his

indictment      did   not   mention     his    earlier    aggravated       felony

convictions, he could not be sentenced to more than two years'

imprisonment, the maximum authorized for an offender without an

earlier   conviction.        Id.       The    Supreme    Court   rejected    the

defendant's argument. It held that subsection (b)(2) "is a penalty

provision, which simply authorizes a court to increase the sentence

for a recidivist."          Id. at 226.        Since it does not define a

separate crime, the indictment does not have to mention an earlier

conviction.     Id. at 226-27.3

           Recognizing that Almendarez-Torres is clearly on-point

and forecloses his argument, Jiménez urges us not to follow it. He

claims that we can imply from         Apprendi v. New Jersey, 530 U.S. 466



3
   We note that even before Almendarez-Torres was decided, we had
held that "§ 1326(b) should be construed as a sentence enhancement
provision.    The indictment therefore need not have alleged
[defendant's] prior aggravated felony conviction to permit his
sentencing under § 1326(b)."    United States v. Forbes, 16 F.3d
1294, 1300 (1st Cir. 1994).

                                      -10-
(2000),4 and other more recent cases from the Supreme Court, that

Almendarez-Torres is no longer good law.       Jiménez predicts that if

faced with this issue again, the Supreme Court would now rule that

§ 1326(b)(2) defines a separate crime and that the indictment must

mention the prior aggravated felony conviction as an element of the

offense.    In support of his argument, he cites Descamps v. United

States, 133 S. Ct. 2276 (2013); Alleyne v. United States, 133

S. Ct. 2151 (2013);5 and Apprendi, 530 U.S. 466.

            In Almendarez-Torres, the Supreme Court resolved the

exact same issue raised here by Jiménez.       In so doing, it clearly

held that the indictment need not mention the prior aggravated

felony conviction in order for the statutory maximum penalty of

§ 1326(b)(2) to be applicable to a defendant charged under § 1326

because it is a matter of recidivism, which "is as typical a

sentencing factor as one might imagine."        Almendarez-Torres, 523

U.S. at 230.   Even though the Supreme Court has cast some doubt as

to whether Almendarez-Torres was correctly decided, it has never

revisited   the   issue   or   otherwise   disavowed   its   application.

Instead, it has stated that Almendarez-Torres is still binding.


4
   In Apprendi, the Supreme Court held 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." 530 U.S. at 490.
5
   Alleyne extended Apprendi's rule to facts that increase the
mandatory minimum.   "Facts that increase the mandatory minimum
sentence are . . . elements and must be submitted to the jury and
found beyond a reasonable doubt." Alleyne, 133 S. Ct. at 2158.

                                   -11-
See Descamps, 133 S. Ct. at 2295 (Thomas, J., concurring) ("[T]his

Court has not yet reconsidered Almendarez-Torres, which draws an

exception to the Apprendi line of cases for judicial factfinding

that   concerns   a   defendant's   prior   convictions."   (citation

omitted)); Alleyne, 133 S. Ct. at 2160 n.1 ("In Almendarez-Torres

we recognized a narrow exception to this general rule for the fact

of a prior conviction.    Because the parties do not contest that

decision's vitality, we do not revisit it for purposes of our

decision today." (citation omitted)); Apprendi, 530 U.S. at 489-90

("Even though it is arguable that Almendarez-Torres was incorrectly

decided, and that a logical application of our reasoning today

should apply if the recidivist issue were contested, Apprendi does

not contest the decision's validity and we need not revisit it for

purposes of our decision today to treat the case as a narrow

exception to the general rule we recalled at the outset.").       We

have also held as much.   See United States v. Rodríguez, 759 F.3d

113, 122 (1st Cir. 2014) (holding that Almendarez-Torres "remains

good law" (quoting United States v. Carrigan, 724 F.3d 39, 51 n.4

(1st Cir. 2013))).6


6
   In an attempt to distinguish his case from Almendarez-Torres,
Jiménez also claims that, unlike the defendant in that case, he
"did not admit any prior conviction" for an aggravated felony.
However, the record belies his statement. The record clearly shows
that Jiménez was advised at his initial appearance and at the
change of plea hearing that the offense charged had a potential
penalty of up to twenty years' imprisonment. Also, the caption of
the indictment, as well as the synopsis that was filed therewith
reflected that he was subject to up to twenty years of imprisonment

                                -12-
          Furthermore, the Supreme Court has clearly stated that we

should not conclude that its more recent cases have, by implication,

overruled an earlier precedent.          Specifically, in Agostini v.

Felton, 521 U.S. 203, 237 (1997), the Supreme Court stated as

follows: "We reaffirm that 'if a precedent of this Court has direct

application in a case, yet appears to rest on reasons rejected in

some other line of decisions, the Court of Appeals should follow the

case which directly controls, leaving to this Court the prerogative

of overruling its own decisions.'" Id. (quoting Rodríguez de Quijas

v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)).

          In light of the foregoing, we conclude that neither the

indictment nor the "Prosecution Version" had to mention Jiménez's

prior aggravated felony conviction in order for him to be subject to

the twenty-year maximum sentence allowed under § 1326(b)(2).

                           III.   Conclusion

          Jiménez's argument is foreclosed by binding Supreme Court

precedent. Unless and until said court overrules its own decision,

we must follow it.    Accordingly, Jiménez's sentence is affirmed.

          AFFIRMED.



under 8 U.S.C. § 1326(b)(2), thus putting him on notice of the
enhanced penalty before he pleaded guilty. Jiménez then admitted
the fact of the aggravated-felony conviction.         Through his
sentencing memorandum, he admitted that he had the 2004 conviction
and that he could not challenge its legality. Afterwards, at the
sentencing hearing, Jiménez conceded that his 2004 conviction was
"valid" and that it was a conviction for an aggravated felony. He
was then asked whether he was moving to withdraw his guilty plea,
to which he responded in the negative.

                                  -13-
