USA v. Carlos Alberto Varela, No. 13-13034 (11th Cir. 2013)
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Case: 13-13034 Date Filed: 12/04/2013 Page: 1 of 3 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 13-13034 Non-Argument Calendar ________________________ D.C.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, 523 U.S. 224, 118 S. Ct. 1219 (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. Almendarez-Torres, 523 U.S. at 239 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, 440 F.3d 1267, 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). 2 Case: 13-13034 Date Filed: 12/04/2013 Page: 3 of 3 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, 133 S.Ct. at 2160 n.1 (stating that the Court s decision in Almendarez-Torres was not being revisited). Accordingly, it remains binding precedent. See Greer, 440 F.3d at 1273. We therefore affirm Varela s sentence. AFFIRMED. 3
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