                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                      FILED
                        ________________________          U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                               February 14, 2006
                               No. 05-12573                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                   D. C. Docket No. 05-00013-CR-J-12HTS

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

WAYNE ANTHONY JOSEPH,

                                                           Defendant-Appellant.


                         ________________________

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

                             (February 14, 2006)

Before BLACK, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

     Wayne Anthony Joseph appeals his sentence for illegal reentry after
deportation. 8 U.S.C. § 1326. The penalty for illegal reentry after deportation is

two years of imprisonment. Because Joseph was previously convicted of an

aggravated felony, he was sentenced to 57 months of imprisonment under section

1326(b)(2).

      Joseph argues that his sentence is unconstitutional in the light of Apprendi v.

New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and its progeny. Joseph

concedes that under Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct.

1219, a previous conviction is a sentencing factor that need not be pleaded in the

indictment but argues that Almendarez-Torres has been repudiated by a majority of

the Supreme Court Justices and should not be followed. “We have held that

Almendarez-Torres remains the law until the Supreme Court determines that

Almendarez-Torres is not controlling precedent.” United States v. Orduno-Mireles,

405 F.3d 960, 963 (11th Cir.), cert. denied 126 S. Ct. 223 (2005) (internal

quotation marks and citation omitted). The sentence is

      AFFIRMED.




                                          2
