                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                                                                  FILED
                         ________________________        U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                               No. 05-11657                   November 23, 2005
                           Non-Argument Calendar            THOMAS K. KAHN
                         ________________________                 CLERK


                      D. C. Docket No. 04-60285-CR-WJZ

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

MARTIN ACOSTA-SANCHEZ,

                                                            Defendant-Appellant.

                         ________________________

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

                             (November 23, 2005)

Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.

PER CURIAM:

      Martin Acosta-Sanchez appeals his 48-month sentence for illegal reentry into

the United States after deportation. 8 U.S.C. § 1326. The maximum sentence under
§ 1326(a) is two years, but the maximum sentence increases to twenty years under

§ 1326(b)(2) if the defendant was deported after a conviction for an aggravated

felony. The district court relied on Acosta-Sanchez’s prior conviction to sentence

him in excess of the two-year statutory maximum provided in § 1326(a). Acosta-

Sanchez argues that, in light of the Supreme Court’s decision in Apprendi v. New

Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and its progeny, his

sentence is illegal because the government failed to allege the prior conviction in the

indictment. Acosta-Sanchez asserts that his prior conviction should have been treated

as an element of the offense and included in the indictment.

      Acosta-Sanchez concedes that this issue has been resolved against him by the

United States Supreme Court in Almendarez-Torres v. United States, 523 U.S. 224,

118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Nevertheless, he contends that the Court’s

statement in Apprendi that it is “arguable that Almendarez-Torres was incorrectly

decided,” suggests that Almendarez-Torres may soon be overruled. He asserts that

the Court’s decisions in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159

L.Ed.2d 403 (2004), United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160

L.Ed.2d 621 (2005), and United States v. Shepard, ___ U.S. ___, 125 S.Ct. 1254, 161

L.Ed.2d 205 (2005), further undermine the rationale of Almendarez-Torres and call

its continued validity into question.

                                          2
      Because Acosta-Sanchez objected in the district court to the government’s

failure to allege his prior conviction in the indictment, we will review his claim de

novo. United States v. Gallegos-Aguero, 409 F.3d 1274, 1276 (11th Cir. 2005);

United States v. Candelario, 240 F.3d 1300, 1306 (11th Cir. 2001). In Almendarez-

Torres the Supreme Court held that a defendant’s prior conviction in the context of

the § 1326(b) increased-penalty provision is merely a sentencing factor that does not

have to be submitted to the jury and proved beyond a reasonable doubt. 523 U.S. at

247, 118 S.Ct. at 1233. The Court later held in Apprendi that “[o]ther than 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, 120 S.Ct. at 2362-63. The Supreme Court also stated that

"we need not revisit [Almendarez-Torres] for purposes of our decision today to treat

the case as a narrow exception to the general rule." Apprendi, 530 U.S. at 490, 120

S.Ct. at 2362.

      After Apprendi was issued, we considered its effect on Almendarez-Torres and

whether the government must allege a defendant’s prior conviction in the indictment

in order for the court to sentence him under the increased maximum penalty provision

of § 1362(b)(2). United States v. Guadamuz-Solis, 232 F.3d 1363, 1363 (11th Cir.

2000). In upholding a defendant’s sentence under circumstances similar to this case,

                                         3
we held that “Almendarez-Torres remains the law until the Supreme Court determines

that Almendarez-Torres is not controlling precedent.” Id. We recently revisited this

issue, taking into consideration the effect of the Booker and Blakely decisions on

Almendarez-Torres, and reached the same conclusion, namely, that “[the holding of

Almendarez-Torres] was left undisturbed by Apprendi, Blakely, and Booker.” United

States v. Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005). In another recent case, we

addressed the issue in light of Shepard and held that “the Supreme Court has not

explicitly overruled Almendarez-Torres. As a result, we must follow Almendarez-

Torres.” United States v. Camacho-Ibarquen, 410 F.3d 1307, 1316 n.3 (11th Cir.

2005).

      We find no reversible error. As Acosta-Sanchez acknowledges in his brief,

Almendarez-Torres controls this case. Because the government is not required to

allege a defendant’s prior conviction in the indictment before he may be sentenced

to an enhanced statutory maximum under 8 U.S.C. § 1326(b)(2), Acosta-Sanchez’s

argument is without merit.

      AFFIRMED.1




      1
          Acosta-Sanchez’s request for oral argument is denied.

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