United States v. Hector Delval-Estrada

Opinion

Case: 14-10011 Date Filed: 12/01/2014 Page: 1 of 2

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 14-10011 Non-Argument Calendar ________________________

D.C. Docket No. 1:13-cr-00195-TCB-RGV-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HECTOR DELVAL-ESTRADA, a.k.a. Hector Ochoa Olguin, a.k.a. Hector Joaquin Delval-Estrada,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(December 1, 2014)

Before WILLIAM PRYOR, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM: Case: 14-10011 Date Filed: 12/01/2014 Page: 2 of 2

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 (1998). Second, “we have specifically rejected the argument that

Almendarez-Torres was undermined by Apprendi [v. New Jersey, 530 U.S. 466

(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.