United States v. Hector Delval-Estrada

585 F. App'x 777

Opinion

PER CURIAM:

Hector Delval-Estrada was sentenced to 40 months in prison after pleading guilty to illegal reentry in violation of 8 U.S.C. § 1326(a) & (b)(2). He contends that, because his prior aggravated felony (possession of cocaine with intent to distribute) is an element of the offense under subsection (b)(2) of § 1326 and was not listed in the indictment, he could not have been sentenced to more than the two-year maximum set forth in subsection (a) of the statute.

We reject Mr. Delval-Estrada’s argument. First, the Supreme Court has expressly held — in a case just like this one— that § 1326(b)(2) does not define a separate crime, and that the government is not required to charge the alien’s prior conviction in the indictment. See Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Second, “we have specifically rejected the argument that Almendarez-Torres was undermined by Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).]” United States v. Greer, 440 F.3d 1267, 1273 (11th Cir.2006). “[W]e are bound to follow Almendarez-Torres unless and until the Supreme Court ... overrules that decision.” United States v. Thomas, 242 F.3d 1028, 1035 (11th Cir.2001).

AFFIRMED.