[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             MAY 30, 2007
                              No. 06-15664                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                  D. C. Docket No. 06-00196-CR-J-25-HTS

UNITED STATES OF AMERICA,


                                                     Plaintiff-Appellee,

                                    versus

RENAN CALIX-MATUTE,
a.k.a. Renan Matute,

                                                     Defendant-Appellant.


                        ________________________

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

                              (May 30, 2007)

Before BIRCH, DUBINA and CARNES, Circuit Judges.

PER CURIAM:

     Appellant Renan Calix-Matute appeals his 36-month sentence for illegal
reentry into the United States after deportation, in violation of 8 U.S.C. § 1326. He

argues that he pled guilty only to a violation of 8 U.S.C. § 1326(a), for which the

maximum penalty is two years imprisonment, but the district court sentenced him

as if he had been convicted under U.S.C. § 1326(b)(1), for which the maximum

penalty is ten years. He concedes that the Supreme Court held in Almendarez-

Torres v. United States, 

, 

, 

(1998),

that the government need not allege a defendant’s prior felony conviction in the

indictment in order for the district court to impose an “enhanced” sentence under

§ 1326(b) because the prior felony is not an element of the offense. However, he

argues that, in light of the Supreme Court’s decision in Apprendi v. New Jersey,

, 

, 

(2000), which struck down a

similar sentencing enhancement provision in a New Jersey statute, we should hold

that the enhancement provision in § 1326(b) is unconstitutional and reverse his

sentence.

      Because Calix-Matute objected in the district court to the government’s

failure to allege his prior conviction in the indictment as a violation of Apprendi,

we review his claim de novo. United States v. Candelario, 

, 1306

(11th Cir. 2001). Section 1326(a) establishes a two-year maximum sentence for

aliens who illegally attempt to re-enter the United States after being deported. 8



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U.S.C. § 1326(a). Pursuant to § 1326(b)(1), however, if an alien’s initial

deportation was subsequent to a conviction for a felony, the statutory maximum

increases to ten years.

      The Supreme Court established in Almendarez-Torres that a defendant’s

prior conviction in the context of the § 1326(b) increased-penalty provision is

merely a sentencing factor that does not have to be submitted to the jury and

proved beyond a reasonable 

, 118 S.Ct. at 1225, 1231-

32. The Court later held in Apprendi that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

, 120 S.Ct. at 2362-63. The Supreme Court also stated that

“we need not revisit [Almendarez-Torres] for purposes of our decision today to

treat the case as a narrow exception to the general rule.” 

, 120 S.Ct. at 2362.

      After Apprendi was issued, we considered its effect on Almendarez-Torres

and whether the government now needs to allege a defendant’s prior conviction in

the indictment in order for the court to sentence him under the increased maximum

penalty provision of § 1362(b)(2). United States v. Guadamuz-Solis, 

, 1363 (11th Cir. 2000). In Guadamuz-Solis, we held that “Almendarez-



                                          3
Torres remains the law until the Supreme Court determines that Almendarez-

Torres is not controlling precedent.” 

Supreme Court’s holding in Almendarez-Torres remains

binding precedent, we affirm Calix-Matute’s sentence.

AFFIRMED.




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