Case: 13-13034   Date Filed: 12/04/2013   Page: 1 of 3




                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-13034
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:13-cr-20035-JAL-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

CARLOS ALBERTO VARELA,

                                                         Defendant-Appellant.

                       ________________________

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

                            (December 4, 2013)

Before TJOFLAT, WILSON and JORDAN, Circuit Judges.

PER CURIAM:
               Case: 13-13034   Date Filed: 12/04/2013   Page: 2 of 3


      Carlos Alberto Varela appeals his 120-month sentence, imposed after he

pled guilty to conspiracy to possess with intent to distribute 500 grams or more of

cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(ii), and 846. The

statutory minimum sentence applicable to Varela increased from five to ten years’

imprisonment because of a prior felony drug conviction. 21 U.S.C. § 841(b)(1)(B).

This conviction was not included in the government’s indictment.

      Varela argues on appeal that the fact of his prior conviction needed to be

included in the indictment because it was used to elevate his statutory minimum

sentence. He concedes, however, that his argument is foreclosed by the Supreme

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

, 

(1998).

      In Almendarez-Torres, the Supreme Court held that the fact of a prior

conviction is not an element of the offense that needs to be proven beyond a

reasonable. 

–40, 118 S. Ct. at 1228–29. We

have previously noted that until the Supreme Court specifically overrules itself, we

are bound by Almendarez-Torres. United States v. Greer, 

, 1273

(11th Cir. 2006).

      A defendant who is found guilty of conspiring to possess with intent to

distribute 500 grams or more of a mixture containing cocaine ordinarily faces a

statutory sentencing range of five to forty years. See 21 U.S.C. § 841(b)(1)(B).


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However, if a defendant commits the same offense after having been convicted for

a felony drug offense, he faces a statutory sentencing range of ten years to life

imprisonment. 21 U.S.C. § 841(b)(1)(B).

      Varela correctly concedes that Almendarez-Torres forecloses his argument

on appeal. The Supreme Court has not overruled Almendarez-Torres. See Alleyne,

570 U.S. at ___ 

n.1 (stating that the Court’s decision in

Almendarez-Torres was not being revisited). Accordingly, it remains binding

precedent. See 

. We therefore affirm Varela’s sentence.

      AFFIRMED.




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