[DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                     FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
                                              U.S.
                      ________________________ ELEVENTH CIRCUIT
                                                           MAY 19, 2011
                             No. 10-13377                   JOHN LEY
                         Non-Argument Calendar                CLERK
                       ________________________

                  D.C. Docket No. 9:09-cr-80126-KLR-1

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

EDGAR GUITTEREZ-GONZALEZ,
a.k.a. Edgar Guitterez,
a.k.a. Edgar Gonzalez,
a.k.a. Fredy Maldonado,

                                                         Defendant-Appellant.

                      ________________________

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

                              (May 19, 2011)

Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
      Edgar Guitterez-Gonzalez appeals his 77-month sentence, imposed after he

pleaded guilty to one count of illegal reentry of a deported alien in violation of 8

U.S.C. § 1326(a) and (b)(2). On appeal, Guitterez-Gonzalez argues that the court

violated his Fifth and Sixth Amendment rights in calculating his recommended

guidelines sentence by imposing a 16-level enhancement on the basis of prior

convictions that were neither alleged in the indictment nor proved to a jury, citing

Apprendi v. New Jersey, 

, 

, 

(2000),

and Blakely v. Washington, 

, 

, 

(2004). He acknowledges that his argument is foreclosed by Almendarez-Torres

v. United States, 

, 

, 

(1998), and

United States v. Orduno-Mireles, 

(11th Cir. 2005), but he asserts the

issue to preserve it for possible review by the Supreme Court.

      This Court reviews constitutional sentencing issues de novo. United States

v. Steed, 

, 978 (11th Cir. 2008). We will reverse the district court

only if it committed a harmful error. United States v. Paz, 

, 948 (11th

Cir. 2005).

      In Almendarez-Torres, the Supreme Court held the government need not

allege prior convictions in its indictment, nor prove these convictions beyond a

reasonable doubt, for a district court to use the convictions to enhance a sentence

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by increasing the maximum available sentence as allowed under 8 U.S.C.

§ 

, 118 S. Ct. at 1222. In Apprendi, the Supreme

Court declined to revisit Almendarez-Torres, ruling 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 doubt.” 

, 120 S. Ct. at 2362-63; see also

United States v. Booker, 

, 244, 

, 756, 

(2005) (“Any fact (other than a prior conviction) which is necessary to support a

sentence exceeding the maximum authorized by the facts established by a plea of

guilty or a jury verdict must be admitted by the defendant or proved to a jury

beyond a reasonable doubt.”). This Court has explained that it remains bound by

Almendarez-Torres unless the Supreme Court expressly overrules it. United

States v. Steed, 

, 979-80 (11th Cir. 2008); United States v. Greer, 

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

,

1246-47 (11th Cir. 2006).

      Upon review of the record and consideration of the parties’ briefs, we

affirm. Guitterez-Gonzalez’s argument that the district court erred by enhancing

his sentence based on convictions not alleged in the indictment nor found by a jury

is foreclosed by Almendarez-Torres, which explained that a prior conviction need

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not be alleged in the indictment nor proved to a jury even if the conviction serves

as the basis for enhancing a sentence by increasing the maximum available term of

imprisonment. See Almendarez-Torres, 523 U.S. at 

.

Because Guitterez-Gonzalez challenges only the use of a prior conviction in

calculating his guidelines range, and does not challenge the use of the conviction

to increase his maximum possible sentence (as the petitioner in Almendarez-

Torres did), the holding that the government need not allege the prior convictions

nor prove them to a jury applies with even greater force here. Guitterez-Gonzalez

misplaces his confidence in Apprendi and Blakely, which left Almendarez-Torres

“undisturbed.” United States v. Shelton, 

, 1329 (11th Cir. 2005).

The district court did not err by imposing the 16-level enhancement under U.S.

Sentencing Guidelines Manual § 2L1.2(b)(1)(A) based on Guitterez-Gonzalez’s

prior convictions.

      AFFIRMED.




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