United States v. Miguel Angel Hernandez-Abraham

Opinion

Case: 13-11932 Date Filed: 12/30/2013 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 13-11932 Non-Argument Calendar ________________________

D.C. Docket No. 9:11-cr-80188-DTKH-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MIGUEL ANGEL HERNANDEZ-ABRAHAM, a.k.a. Miguel Hernandez,

Defendant-Appellant.

________________________

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

(December 30, 2013)

Before PRYOR, MARTIN, and FAY, Circuit Judges.

PER CURIAM: Case: 13-11932 Date Filed: 12/30/2013 Page: 2 of 3

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 (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-Torres

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 (2000); see also

Alleyne v. United States, 133 S. Ct. 2151, 2160 n.1 (2013) (declining to revisit

Almendarez-Torres, because the parties did not contest that decision). Rather, the

Supreme Court has maintained, “[o]ther than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed statutory maximum

2 Case: 13-11932 Date Filed: 12/30/2013 Page: 3 of 3

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 did not err by enhancing his

sentence based on prior convictions not charged in the indictment or proved to a

jury beyond a reasonable doubt.

AFFIRMED.