USA v. Vicente Maldonado-Asencio, No. 05-15344 (11th Cir. 2006)

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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT MARCH 30, 2006 THOMAS K. KAHN CLERK No. 05-15344 Non-Argument Calendar ________________________ D. C. Docket No. 05-00122-CR-J-25-TEM UNITED STATES OF AMERICA, Plaintiff-Appellee, versus VICENTE MALDONADO-ASENCIO, a.k.a. Felix Antonio Poso, a.k.a. Edwin Maldonado-Poso, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Florida _________________________ (March 30, 2006) Before TJOFLAT, DUBINA and CARNES, Circuit Judges. PER CURIAM: Vincente Maldonado-Asencio appeals the 70-month sentence imposed following his guilty plea to unlawfully entering the United States, 8 U.S.C. § 1327. Under U.S.S.G. § 2L1.2(b)(1)(A)(i), a defendant s offense level is enhanced 16 levels if he was previously deported after conviction for a felony drug trafficking offense for which a sentence of more than 13 months was imposed. The § 2L1.2(b)(1)(A)(i)enhancement was applied in this case. MaldonadoAsencio contends that it should not have been because, in his view, a prior aggravated felony conviction is an element of the offense under 8 U.S.C. § 1362(B)(2). For that reason, he says, the sentence imposed unconstitutionally exceeds the statutory maximum for the offense based on the facts admitted by him or charged in the indictment. Maldonado-Asencio s position is precluded by Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S. Ct. 1219, 1233, 140 L.E.2d 350 (1999), and our many decisions attesting to that decision s continuing validity and applying it. See United States v. Greer, 2006 WL 435662, *5-6, ___ F.3d ___, ___ (11th Cir. Feb. 24, 2006) ( As we have said several times, unless and until the Supreme Court specifically overrules Almendarez-Torres, we will continue to follow it. ); United States v. Camacho-Ibarquen, 410 F.3d 1307, 1316 n. 3 (11th Cir.2005) ( [T]he Supreme Court has not explicitly overruled Almendarez-Torres. As a result, we 2 must follow Almendarez-Torres. ); United States v. Burge, 407 F.3d 1183, 1188 (11th Cir.), cert. denied, 126 S. Ct. 551 (2005); United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir.2005); United States v. Orduno-Mireles, 405 F.3d 960, 962 (11th Cir.), cert. denied, 126 S. Ct. 223 (2005); United States v. Marseille, 377 F.3d 1249, 1257-58 (11th Cir.2004); United States v. Guadamuz-Solis, 232 F.3d 1363 (11th Cir.2000) ( Almendarez-Torres remains the law until the Supreme Court determines that Almendarez-Torres is not controlling precedent. ); United States v. Miles, 290 F.3d 1341, 1348 (11th Cir.2002). The facts of this case are not materially distinguishable from the facts of those cases. A prior conviction is not an element of the offense under 8 U.S.C. § 1326(b)(2), regardless of whether the defendant admits to it. AFFIRMED. 3

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