United States v. Miguel Angel Hernandez-Abraham

550 F. App'x 849

Opinion

PER CURIAM:

Miguel Hernandez-Abraham appeals his 77-month sentence after pleading guilty to one count of illegal reentry into the United States after having been deported, in violation of 8 U.S.C. § 1326(a), (b)(2). On appeal, he argues the district judge lacked authority to increase his sentence, based upon prior convictions that were neither charged in the indictment nor proved to a jury beyond a reasonable doubt. We affirm.

We review constitutional sentencing issues de novo. United States v. Steed, 548 F.3d 961, 978 (11th Cir.2008) (per curiam). In Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 1222, 140 L.Ed.2d 350 (1998), the Supreme Court held the government does not need to prove beyond a reasonable doubt a defendant had prior convictions or allege those prior convictions in the indictment in order to use them to enhance a defendant’s sentence under a federal statute. Although the Supreme Court has since expressed some doubt as to whether Almendarez-Toires was correctly decided, it has explicitly declined to revisit that decision. Apprendi v. New Jersey, 530 U.S. 466, 489-90, 120 S.Ct. 2348, 2362, 147 L.Ed.2d 435 (2000); see also Alleyne v. United States, — U.S. —, 133 S.Ct. 2151, 2160 n. 1, 186 L.Ed.2d 314 (2013) (declining to revisit Almendarez-Torres, because the parties did not contest that decision). Rather, the Supreme Court has maintained, “[ojther 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.” Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63.

Furthermore, we since have held Apprendi did not overrule Almendarez-Torres. United States v. Beckles, 565 F.3d 832, 846 (11th Cir.2009); United States v. Gibson, 434 F.3d 1234, 1246-47 (11th Cir. 2006). We have also recognized that we are “bound to follow Almendarez-Torres unless and until the Supreme Court itself overrules that decision.” United States v. Thomas, 242 F.3d 1028, 1035 (11th Cir. 2001). Because Hernandez-Abraham concedes binding precedent forecloses his argument, the district judge erred by enhancing his sentence based on prior convictions not charged in the indictment or proved to a jury beyond a reasonable doubt.

AFFIRMED.