USA v. Hector Delval-Estrada, No. 14-10011 (11th Cir. 2014)

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Case: 14-10011 Date Filed: 12/01/2014 Page: 1 of 2 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 14-10011 Non-Argument Calendar ________________________ D.C. Docket No. 1:13-cr-00195-TCB-RGV-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus HECTOR DELVAL-ESTRADA, a.k.a. Hector Ochoa Olguin, a.k.a. Hector Joaquin Delval-Estrada, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Northern District of Georgia ________________________ (December 1, 2014) Before WILLIAM PRYOR, MARTIN, and JORDAN, Circuit Judges. PER CURIAM: Case: 14-10011 Date Filed: 12/01/2014 Page: 2 of 2 Hector Delval-Estrada was sentenced to 40 months in prison after pleading guilty to illegal reentry in violation of 8 U.S.C. § 1326(a) & (b)(2). He contends that, because his prior aggravated felony (possession of cocaine with intent to distribute) is an element of the offense under subsection (b)(2) of § 1326 and was not listed in the indictment, he could not have been sentenced to more than the two-year maximum set forth in subsection (a) of the statute. We reject Mr. Delval-Estrada’s argument. First, the Supreme Court has expressly held—in a case just like this one—that § 1326(b)(2) does not define a separate crime, and that the government is not required to charge the alien’s prior conviction in the indictment. See Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998). Second, “we have specifically rejected the argument that Almendarez-Torres was undermined by Apprendi [v. New Jersey, 530 U.S. 466 (2000).]” United States v. Greer, 440 F.3d 1267, 1273 (11th Cir. 2006). “[W]e are bound to follow Almendarez–Torres unless and until the Supreme Court . . . overrules that decision.” United States v. Thomas, 242 F.3d 1028, 1035 (11th Cir. 2001). AFFIRMED. 2