[DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                    FILED
                                                          U.S. COURT OF APPEALS
                         ________________________           ELEVENTH CIRCUIT
                                                                JAN 31, 2007
                               No. 05-16177                  THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                      D. C. Docket No. 04-60168-CR-PCH

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

GEORGE DANIEL,

                                                            Defendant-Appellant.

                         ________________________

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

                               (January 31, 2007)

Before TJOFLAT, ANDERSON and BLACK, Circuit Judges.

PER CURIAM:

      George Daniel appeals his 96-month prison sentence, which was imposed

on him for re-entering the United States of America as an alien who had been
previously removed subsequent to a conviction for commission of an aggravated

felony, in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). The district court

found that Daniel had been convicted for possession with intent to distribute

narcotics prior to his deportation and, in accordance with the sentencing

guidelines, applied a 16 level enhancement to arrive at a sentencing range of 92-

115 months.

      Responding to Daniel’s first appeal, we held that the district court may

determine, as a matter of law, the existence of a prior conviction and classify that

conviction without offending the Supreme Court’s decision in United States v.

Booker, 

, 

(2005). See United States v. Daniel, 148

Fed.Appx. 833, 834-35 (11th Cir. 2005) (“An enhancement based on a prior

conviction under § 2L1.2(b)(1)(A)(i), even if not admitted by the defendant, does

not represent a constitutional Booker error”). See also United States v. Orduno-

Mireles, 

, 962-63 (11th Cir. 2005); United States v. Camacho-

Ibarquen, 

, 1290 (11th Cir. 2005). We remanded to the district

court so that it could reconsider its sentence under an advisory guideline scheme.

Daniel, 148 Fed.Appx. at 836. On remand, the district court again sentenced

Daniel to 96 months. This appeal followed.

      On appeal, Daniel argues that the district court lacked the authority to

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enhance his sentence beyond the statutory maximum based on the fact of a prior

conviction not proven to a jury beyond a reasonable doubt or expressly admitted

by him. He argues that the district court violated his Fifth and Sixth Amendment

rights because, although the grand jury indicted him for a violation of

§ 1326(b)(2), the underlying conviction was not listed in the indictment, and the

court sentenced him in excess of the two-year statutory maximum in § 1326(a)

solely on the court’s determination that his prior conviction was an aggravated

felony. Daniel concedes that his argument is foreclosed by our interpretation of

the Supreme Court’s decision in United States v. Almendarez-Torres, 

, 

(1998). See United States v. Marseille, 

, 1257-

58 (11th Cir. 2004); see also United States v. Martinez, 

, 1323 (11th

Cir. 2006); United States v. Greer, 

, 1273-74 (11th Cir. 2006).

      As we have done with other defendants a number of times before, we reject

the argument advanced by Daniel because it is contrary to precedent from the

Supreme Court and this Circuit. That is the only issue raised on appeal.

Accordingly, Daniel’s 96-month sentence is

AFFIRMED.




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