[DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________           FILED
                                                  U.S. COURT OF APPEALS
                               No. 10-10982         ELEVENTH CIRCUIT
                           Non-Argument Calendar    DECEMBER 14, 2010
                         ________________________        JOHN LEY
                                                          CLERK
                  D.C. Docket No. 2:07-cr-00145-JES-DNF-1

UNITED STATES OF AMERICA,

                                                 lllllllllllllllllllllPlaintiff - Appellee,

                                    versus

JAIME MOLINA-GARCIA,
a.k.a. Jaime Garcia-Molina,

                                             lllllllllllllllllllllDefendant - Appellant.

                        ________________________

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

                              (December 14, 2010)

Before DUBINA, Chief Judge, PRYOR and FAY, Circuit Judges.

PER CURIAM:

     Appellant Jaime Molina-Garcia appeals his conviction and 72-month
sentence for illegal reentry into the United States following deportation, in

violation of 8 U.S.C. § 1326(a), (b)(2). First, Molina-Garcia argues that the

district court abused its discretion in denying his request at trial for a competency

hearing.

      A district court’s denial of a motion for a competency hearing is reviewed

for an abuse of discretion. See United States v. Nickels, 

, 1251

(11th Cir. 2003). “[I]n order to trigger the trial court’s obligation to order a

competency hearing, the court must have information raising a ‘bona fide doubt’

as to the defendant’s competency.” Watts v. Singletary, 

, 1287 (11th

Cir. 1996) (habeas context). “Relevant information may include evidence of a

defendant’s irrational behavior, demeanor at trial, or prior medical opinion; but

‘there are, of course, no fixed or immutable signs which invariably indicate the

need for further inquiry to determine fitness to proceed.’” 

v.

Missouri, 

, 180, 

, 908, 

(1975)).

      The district court conducted a pre-trial competency hearing. In ruling that

Molina-Garcia was competent to proceed to trial, the district court considered

Molina-Garcia’s own expert’s equivocal opinion that suggested the possibility of

malingering, and the expert’s determination, after proper testing, that Molina-

Garcia actually was a malingerer who suffered no mental defect or disease. At

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trial, Molina-Garcia expressed anger and frustration toward his counsel and the

court because they refused to accept his claim that he was a lawful resident of the

United States. None of his comments and rants required the district court to

conduct another competency hearing. Accordingly, we conclude from the record

that the district court did not abuse its discretion in denying Molina-Garcia’s

motion at his trial that the court order another competency hearing.

      The district court did not plainly err in failing sua sponte to conclude that

Molina-Garcia’s decision not to testify was unknowing and involuntary; it had no

duty to inquire more than it did, and both Molina-Garcia and his attorney advised

the court that Molina-Garcia had decided not to testify. The district court also did

not plainly err in removing Molina-Garcia from the courtroom when he persisted

in disruptive behavior after the district court repeatedly warned him. The rules

provide that such conduct amounts to a waiver of the right to be present during

trial. See Fed. R. Crim. P. 43(c).

      Molina-Garcia next argues that the court erred by enhancing his statutory

sentence based on prior convictions not admitted by him or proven to a jury

beyond a reasonable doubt. We review constitutional issues de novo. United

States v. Steed, 

, 978 (11th Cir. 2008). In Almendarez-Torres v.

United States, 

, 226-27, 

, 1222, 

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(1998), the Supreme Court explained that a prior conviction used to enhance a

sentence under § 1326(b)(2) is not an element of the offense, and, therefore, it

need not be alleged in the indictment or found by a jury beyond a reasonable

doubt. Although Apprendi v. New Jersey, 

, 

, 147 L.

Ed. 2d 435 (2000) and subsequent decisions have cast doubt on the reasoning of

Almendarez-Torres, we have repeatedly explained that Almendarez-Torres

remains binding precedent unless and until that case is expressly overruled by the

Supreme Court. See 

; United States v. Greer, 

, 1273-76 (11th Cir. 2006); United States v. Gibson, 

, 1246-47

(11th Cir. 2006). Thus, this argument has no merit.

      For the aforementioned reasons, we affirm Molina-Garcia’s conviction and

sentence.

      AFFIRMED.




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