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                                                           [DO NOT PUBLISH]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:
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      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,

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

States, 

, 226-27, 

, 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, 

, 489-90, 

, 2362 (2000); see also

Alleyne v. United States, 

, 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




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must be submitted to a jury, and proved beyond a reasonable doubt.” 

, 120 S. Ct. at 2362-63.

      Furthermore, we since have held Apprendi did not overrule

Almendarez-Torres. United States v. Beckles, 

, 846 (11th Cir. 2009);

United States v. Gibson, 

, 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, 

, 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.




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