FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCTOBER 2, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-11140

Non-Argument Calendar

________________________

D. C. Docket No. 05-60233-CR-JIC

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

JOSE JULIO MEJIA HERNANDEZ, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(October 2, 2006)

Before CARNES, PRYOR and FAY, Circuit Judges.

PER CURIAM:
 This sections requires a 16-level increase in the offense level of a defendant who 1

previously was deported or unlawfully remained in the United States after a felony drug

trafficking offense conviction for which the sentence imposed exceeded 13 months. U.S.S.G.

§ 2L1.2(b)(1)(A)(I).

2

Jose Julio Mejia Hernandez appeals his 41-month sentence for illegal reentry after deportation, in violation of 8 U.S.C. §§ 1326(a), (b)(2), imposed after a

plea of guilty. On appeal, Mejia Hernandez argues that his Fifth and Sixth

Amendment rights were violated when, based on his prior federal conviction for

possession with intent to distribute cocaine, the district court enhanced his sentence

under § 1326(b)(2) and applied a 16-level Guideline enhancement under U.S.S.G.

§ 2L1.2(b)(1)(A)(I). For the reasons set forth more fully below, we affirm. 1

We review de novo Mejia Hernandez’s preserved constitutional challenge to

his sentence based on the failure of the indictment to allege his prior conviction. 

See United States v. Cantellano, 430 F.3d 1142, 1144 (11th Cir. 2005), cert.

denied, 126 S.Ct. 1604 (2006). Mejia Hernandez’s challenge to the 16-level

Guideline enhancement is raised for the first time on appeal. He also argues, for

the first time on appeal, that the district court should not have made the finding that

his conviction was an aggravated felony under § 1326(b)(2), because such a

finding was analogous to judicial fact-finding about the character of a prior

conviction prohibited by Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254,

161 L.Ed.2d 205 (2005). These two arguments are reviewed for plain error. See
3

United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied, 125

S.Ct. 2935 (2005). Under this standard of review, there must be (1) an error,

(2) that is plain, and (3) that affects substantial rights. Id. If these three conditions

are met, we may notice the error only if “the error seriously affects the fairness,

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

marks omitted). In order for an error to be plain, it must be obvious or clear under

current law. United States v. Gerrow, 232 F.3d 831, 835 (11th Cir. 2000). 

We find neither error nor plain error. Section 1326(a) establishes a two-year

maximum sentence for aliens who illegally re-enter the United States after being

deported. 8 U.S.C. § 1326(a). Pursuant to § 1326(b)(2), however, if an alien’s

initial removal was subsequent to a conviction for an aggravated felony, the

statutory maximum increases to 20 years’ imprisonment. Id. § 1326(b)(2). In

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

350 (1998), the United States Supreme Court held that the aggravated felony

conviction required under § 1326(b)(2) was not an element of the offense and,

thus, the prior conviction need not be alleged in the indictment. See United States

v. Greer, 440 F.3d 1267, 1273 (11th Cir. 2006). Under Almendarez-Torres, Mejia

Hernandez’s prior conviction did not need to be charged in the indictment nor

proved beyond a reasonable doubt in order for that conviction to be used to
4

increase his statutory maximum sentence or Guideline range. See United States v.

Martinez, 434 F.3d 1318, 1323 (11th Cir.), cert. denied, 126 S.Ct. 2946 (2006);

United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315-16 (11th Cir.), cert.

denied, 126 S.Ct. 457 (2005). As we have repeatedly recognized, AlmendarezTorres remains the law until it is overruled by the Supreme Court. See, e.g., Greer,

440 F.3d at 1273; Camacho-Ibarquen, 410 F.3d at 1316 n.3.

Mejia Hernandez’s argument that the district court improperly determined

that his prior federal conviction for possession with intent to distribute cocaine was

an aggravated felony under § 1326(b)(2) also fails because it was a question of law

for the district court to decide. An aggravated felony for the purposes of

§ 1326(b)(2) includes “illicit trafficking in a controlled substance (as defined in

section 802 of Title 21), including a drug trafficking crime (as defined in section

924(c) of Title 18).” 8 U.S.C. § 1101(a)(43)(B). Whether a prior conviction is an

aggravated felony under § 1101(a)(43) is a question of law. Ramsey v. I.N.S., 55

F.3d 580, 582 (11th Cir. 1995). Shepard is inapposite as the court need only find

that Mejia Hernandez had a felony conviction for violating 21 U.S.C. § 841. Drug

trafficking crimes under § 924(c)(2) include felonies punishable under the

Controlled Substances Act, 21 U.S.C. § 801 et seq.. 18 U.S.C. § 924(c)(2). 

Section 841 criminalizes possession with intent to distribute a controlled substance. 
 Cocaine is a schedule II controlled substance. 21 U.S.C. § 812. 2

5

21 U.S.C. § 841(a)(1). Where the offense involves cocaine, the defendant faces a 2

statutory maximum term of imprisonment of at least 20 years. 21 U.S.C.

§ 841(b)(1)(A)-(C). Thus, the district court did not err in determining that Mejia

Hernandez’s federal conviction for possession with intent to distribute cocaine was

an aggravated felony under § 1326(b)(2). 

In light of the foregoing, we find no error in Mejia Hernandez’s sentence.

AFFIRMED.