FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

June 23, 2006

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-15322

Non-Argument Calendar

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D.C. Docket No. 05-60118-CR-JIC

UNITED STATES OF AMERICA,

 

Plaintiff-Appellee, 

versus

HOWARD ORVILLE ORAL DYER,

a. k. a. Eric Keith Dyer,

a. k. a. Horace Brown,

 Defendant-Appellant. 

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Appeal from the United States District Court

for the Southern District of Florida 

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(June 23, 2006)

Before EDMONDSON, Chief Judge, DUBINA and HULL, Circuit Judges.

PER CURIAM:
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Defendant-Appellant Howard Orville Oral Dyer appeals his 37-month

sentence for illegal re-entry into the United States after previously being deported,

8 U.S.C. § 1326(a) and (b)(2). No reversible error has been shown; we affirm.

Defendant argues that, when calculating his criminal history category for

sentencing, the district court erred in relying on a National Crime Information

Center (“NCIC”) report showing that he had a June 1991 conviction for

possession of marijuana. Defendant contends that the NCIC report is hearsay

evidence that is insufficient to establish a prior conviction. Defendant also asserts

that his June 1991 conviction was for a probation violation and was not a

conviction related to a new offense. 

We review the district court’s findings on sentencing matters for clear error. 

United States v. Jordi, 418 F.3d 1212, 1214 (11th Cir.), cert. denied, 126 S. Ct.

812 (2005). We have explained that district courts may consider reliable hearsay

evidence at sentencing. United States v. Zlatogur, 271 F.3d 1025, 1031 (11th Cir.

2001). “The district court may rely on such evidence as long as the evidence has

sufficient indicia of reliability, the court makes explicit findings of fact as to

credibility, and the defendant has an opportunity to rebut the evidence.” Id.

(internal quotation omitted). 
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At sentencing, Defendant objected to the calculation of his criminal history

category based, in part, on the June 1991 conviction documented by the NCIC

report; and the district court considered arguments made by Defendant and the

government about the scoring of Defendant’s criminal history category. Because

Defendant offered no evidence indicating that the NCIC report was unreliable or

that his June 1991 sentence was actually for a probation violation, it was not

clearly erroneous for the district court to rely on the NCIC report in determining

Defendant’s criminal history category.

Defendant next argues that the district court erred in determining that the

statutory maximum sentence for his offense was 20 years, as provided by 8 U.S.C.

§ 1326(b)(2), instead of two years, which is authorized by 8 U.S.C. § 1326(a). 

Defendant contends that, because his indictment did not charge a separate offense

under section 1326(b)(2), the statutory maximum provided by that section does not

apply to him. Although Defendant concedes that the Supreme Court concluded in

Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L.Ed.2d

350 (1998), that section 1326(b)(2) is a sentencing factor and is no criminal

offense separate from section 1326(a), he asserts that recent decisions of the

Supreme Court have called into question the continuing validity of the

Almendarez-Torres decision. 
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Because Defendant did not raise this issue before the district court, we

review his claim only for plain error. United States v. Rodriguez, 398 F.3d 1291,

1298 (11th Cir.), cert. denied, 125 S. Ct. 2935 (2005). Under a plain-error

analysis, we may not correct the error unless there is “(1) error, (2) that is plain,

(3) that affects substantial rights, and (4) the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. (internal quotation

omitted). 

Under section 1326(a), any alien who has been deported and subsequently

re-enters the United States without permission is subject to a maximum two-year

sentence. Section 1326(b)(2) provides that an alien who has been deported – after

being convicted of an aggravated felony – and re-enters the United States without

permission is subject to a statutory maximum sentence of 20 years. In

Almendarez-Torres, the Supreme Court concluded that section 1326(b)(2) is a

“penalty provision, which simply authorizes a court to increase the sentence for a

recidivist. It does not define a separate crime.” 523 U.S. at 226, 118 S. Ct. at

1222. 

In this case, Defendant does not assert that he committed no aggravated

felony that would trigger the 20-year statutory maximum of section 1326(b)(2);

instead, he argues he could not be sentenced under that section because his
5

indictment failed to charge him with a separate crime under section 1326(b)(2). 

Because the Supreme Court has not explicitly overruled Almendarez-Torres, we

continue to follow that decision. United States v. Camacho-Ibarquen, 410 F.3d

1307, 1316 n.3 (11th Cir.), cert. denied, 126 S. Ct. 457 (2005). Therefore,

Defendant’s claim fails.

AFFIRMED.