USA v. Jose Fernando Martinez-Caceres, No. 09-16440 (11th Cir. 2010)
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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 09-16440 Non-Argument Calendar ________________________ FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT OCTOBER 29, 2010 JOHN LEY CLERK D. C. Docket No. 09-00256-CR-J-25TEM UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSE FERNANDO MARTINEZ-CACERES, a.k.a. Javier Diaz Sanchez, a.k.a. Jose Fernando Martinez-Caseras, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Florida _________________________ (October 29, 2010) Before EDMONDSON, MARTIN and FAY, Circuit Judges. PER CURIAM: Jose Fernando Martinez-Caceres appeals his sentence for illegal reentry into the United States following a previous deportation, in violation of 8 U.S.C. § 1326. On appeal, Martinez-Caceres contends that the district court erred by imposing an enhanced sentence based on a felony conviction that was not set forth in the charging information. He recognizes that Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) holds that a prior conviction is not an element of the offense under 8 U.S.C. § 1326(b), but he argues that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and subsequent cases have called the validity of Almendarez-Torres into question. He asserts that we should not apply Almendarez-Torres to the distinguishable facts of his case. For the reasons stated below, we affirm Martinez-Caceres s sentence. We review constitutional issues de novo. United States v. Steed, 548 F.3d 961, 978 (11th Cir. 2008). In Almendarez-Torres, the Supreme Court explained that a prior conviction used to enhance a sentence under 8 U.S.C. § 1326(b)(2) is not an element of the offense, and, therefore, it need not be alleged in the indictment or found by a jury beyond a reasonable doubt. Almendarez-Torres, 523 U.S. at 226-27, 118 S.Ct. at 1222. Although Apprendi and subsequent decisions have cast doubt on the reasoning of Almendarez-Torres, we have 2 repeatedly explained that Almendarez-Torres remains binding precedent unless and until that case is expressly overruled by the Supreme Court. Steed, 548 F.3d at 979-80; United States v. Greer, 440 F.3d 1267, 1273-76 (11th Cir. 2006); United States v. Gibson, 434 F.3d 1234, 1246-47 (11th Cir. 2006). Martinez-Caceres s argument that the district court erred by enhancing his sentence based on a prior conviction not charged in the information is foreclosed by Almendarez-Torres. See Almendarez-Torres, 523 U.S. at 226-27, 118 S.Ct. at 1222. As noted above, Almendarez-Torres remains binding precedent in this Circuit unless and until it is overruled by the Supreme Court. See Steed, 548 F.3d at 979-80; Greer, 440 F.3d at 1273-76; Gibson, 434 F.3d at 1246-47. Although Martinez-Caceres suggests that Almendarez-Torres is distinguishable, he does not point to any differences between that case and his own. Almendarez-Torres addressed the same legal question and the same statute that are at issue in this case. See Almendarez-Torres, 523 U.S. at 226-27, 118 S.Ct. at 1222. AlmendarezTorres is directly on point, and, under that decision, the district court did not err by imposing an enhanced sentence based on a conviction not alleged in the information. Accordingly, we affirm Martinez-Caceres s sentence. AFFIRMED. 3
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