FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JANUARY 3, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-11104

Non-Argument Calendar

________________________

D. C. Docket No. 04-00031-CR-WCO-2

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

NOEL VALIENTE-GALLARDO, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(January 3, 2006)

Before TJOFLAT, BIRCH and BLACK, Circuit Judges.

PER CURIAM:
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Noel Valiente-Gallardo appeals his sentence for illegally re-entering the

United States after previous deportation, in violation of 8 U.S.C. § 1326(a) and

(b)(2). Valiente-Gallardo asserts the district court violated his Fifth and Sixth

Amendment rights by (1) finding him to be an aggravated felon pursuant to 8

U.S.C. § 1326(b)(2), and increasing his statutory maximum sentence from 2 years

to 20 years; (2) applying a 16-level enhancement pursuant to U.S.S.G.

§ 2L1.2(b)(1)(A), based on his prior conviction for a crime of violence; and

(3) sentencing him based upon a criminal history category of IV. Specifically,

Valiente-Gallardo contends his Fifth Amendment rights were violated because his

prior convictions were not included in the indictment, and his Sixth Amendment

rights were violated because his prior convictions were not proven beyond a

reasonable doubt or admitted by him. The district court did not err, and we affirm. 

We review a defendant’s preserved constitutional challenges to his sentence

de novo but will reverse only for harmful error. See United States v. Paz, 405 F.3d

946, 948 (11th Cir. 2005). Sentences imposed after United States v. Booker, 125
 Valiente-Gallardo does not challenge the reasonableness of his sentence. Thus, we will 1

only consider his Fifth and Sixth Amendment challenges.

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S. Ct. 738 (2005), are reviewed for reasonableness. United States v. Winingear,

1

422 F.3d 1241, 1244 (11th Cir. 2005). 

“In Almendarez-Torres v. United States, [118 S. Ct. 1219 (1998)] the

Supreme Court held that the government need not allege in its indictment and need

not prove beyond a reasonable doubt that a defendant had prior convictions for a

district court to use those convictions for purposes of enhancing a sentence.”

United States v. Marseille, 377 F.3d 1249, 1257 (11th Cir.), cert. denied, 125 S.

Ct. 637 (2004). We have recently clarified the Supreme Court’s decision in

Almendarez-Torres “was left undisturbed by Apprendi, Blakely, and Booker.”

United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005). In United States

v. Camacho-Ibarquen, we held a district court’s application of § 2L1.2(b)(1)(A)

based on prior convictions did not violate a defendant’s Sixth Amendment rights. 

410 F.3d 1307, 1316 n.3 (11th Cir.), cert. denied, 126 S. Ct.457 (2005). Recently,

we reaffirmed Almendarez-Torres remains good law after Booker, holding

“because the prior-conviction exception remains undisturbed after Booker, a

district court does not err by relying on prior convictions to enhance a defendant’s
4

sentence.” United State v. Orduno-Mireles, 405 F.3d 960, 962 (11th Cir.), cert.

denied, 126 S. Ct. 223 (2005). 

As for Valiente-Gallardo’s Fifth Amendment claims, based upon the

holding in Almendarez-Torres, the indictment need not include prior convictions

in order for the district court to use those convictions for sentencing purposes. See

Marseille, 377 F.3d at 1257. Accordingly, Valiente-Gallardo’s Fifth Amendment

claims fail. As for Valiente-Gallardo’s Sixth Amendment claims, the district court

did not violate his Sixth Amendment rights in light of Booker because the court

applied the Guidelines as advisory. 125 S. Ct. at 749–56. Furthermore, even if the

district court had applied the Guidelines as mandatory, prior convictions need not

be proven beyond a reasonable doubt in order to be used for sentencing purposes,

and Valiente-Gallardo’s criminal history category and the imposition of a 16-level

enhancement under U.S.S.G. § 2L1.2(b)(1)(A) did not implicate Booker because

they merely involved a determination that Valiente-Gallardo had prior convictions. 

See Camacho-Ibarquen, 410 F.3d at 1315–16; Orduno-Mireles, 405 F.3d at 962. 

Thus, Valiente-Gallardo’s Sixth Amendment claims also fail. 

AFFIRMED.