[DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________           FILED
                                                          U.S. COURT OF APPEALS
                                       No. 10-12781         ELEVENTH CIRCUIT
                                   Non-Argument Calendar      JANUARY 7, 2011
                                 ________________________        JOHN LEY
                                                                  CLERK
                          D.C. Docket No. 3:09-cr-00362-HLA-JRK-1


UNITED STATES OF AMERICA,

lllllllllllllllllllll                                               Plaintiff - Appellee,

                                            versus

JUAN VILLANUEVA-OCHOA,
a.k.a. Ramiro Zacarias-Ochoa,

lllllllllllllllllllll                                            Defendant - Appellant.
                                ________________________

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

                                       (January 7, 2011)

Before CARNES, HULL, and MARTIN, Circuit Judges.

PER CURIAM:

         Juan Villanueva-Ochoa, a Mexican citizen, appeals his 46-month sentence
imposed after his conviction for illegal reentry of a deported alien, in violation of

8 U.S.C. § 1326. Villanueva-Ochoa had previously been deported following two

convictions for domestic battery—one of which included punching the pregnant

mother of his child in the stomach so hard that she suffered vaginal bleeding. The

district court enhanced Villanueva-Ochoa’s sentence under § 1326(b)(2) because

he had been previously deported following an aggravated felony. Villanueva-

Ochoa contends that the district court unconstitutionally erred when it enhanced

his sentence because his prior felony conviction was not alleged in the indictment

or admitted to during the plea hearing.

      “We review de novo the constitutional challenges to a sentence.” United

States v. Cantellano, 

, 1144 (11th Cir. 2005). The Supreme Court

held in Almendarez-Torres v. United States that “subsection [8 U.S.C. 1326(b)(2)]

is a penalty provision, which simply authorizes a court to increase the sentence for

a recidivist. It does not define a separate crime. Consequently, neither the statute

nor the Constitution requires the Government to charge the factor that it mentions,

an earlier conviction, in the indictment.” 

, 226–227, 

,

1222 (1998). Although Villanueva-Ochoa argues that the Supreme Court has cast

doubt on its reasoning in Almendarez-Torres, that decision has not been overruled.

See Apprendi v. New Jersey, 

, 489, 

, 2362 (2000) ([I]t

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is arguable that Almendarez-Torres was incorrectly decided”); but see 

120 S.Ct. at 2362 (“Apprendi does not contest [Almendarez-Torres’] validity and

we need not revisit it for purposes of our decision today”). “As we have said

several times, unless and until the Supreme Court specifically overrules

Almendarez-Torres, we will continue to follow it.” United States v. Greer, 

, 1273 (11th Cir. 2006) (citing United States v. Camacho-Ibarquen, 

, 1316 n. 3 (11th Cir. 2005) (“[T]he Supreme Court has not explicitly

overruled Almendarez-Torres. As a result, we must follow Almendarez-Torres.”);

United States v. Guadamuz-Solis, 

(11th Cir.2000) ( “Almendarez-

Torres remains the law until the Supreme Court determines that Almendarez-

Torres is not controlling precedent.”)).

      AFFIRMED.




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