FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

June 26, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-15242

Non-Argument Calendar

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D. C. Docket No. 07-60157-CR-JIC

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

GUSTAVO GONZALEZ-LOPEZ, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(June 26, 2008)

Before TJOFLAT, BLACK and MARCUS, Circuit Judges.

PER CURIAM:

Gustavo Gonzalez-Lopez appeals from his 46-month sentence, imposed after

he pled guilty to one count of illegally re-entering the United States after having
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been deported, in violation of 8 U.S.C. § 1326(a). On appeal, Gonzalez-Lopez

argues that his Fifth and Sixth Amendment rights were violated because the district

court enhanced his sentence based on facts that it found under a preponderanceof-the-evidence standard and that were not charged in the indictment or found by a

jury beyond a reasonable doubt. After thorough review, we affirm.

We review constitutional challenges to a sentence de novo. United States v.

Campbell, 491 F.3d 1306, 1314 (11th Cir. 2007). 

Section 1326(a) of Title 8 provides that an alien who has been removed from

the United States and subsequently re-enters the United States without receiving

permission from the Attorney General may be imprisoned, but not for more than

two years. 8 U.S.C. § 1326(a). Subsection (b)(2) provides that any alien described

in subsection (a), “whose removal was subsequent to a conviction for commission

of an aggravated felony, [] shall be fined under such Title, imprisoned not more

than 20 years, or both[.]” 8 U.S.C. § 1326(b)(2).

In Almendarez-Torres v. United States, a defendant who was charged with

illegally re-entering the United States after being deported under 8 U.S.C.

§ 1326(a), argued that he could not be sentenced to more than two years’

imprisonment because his prior aggravated felonies were not mentioned in the

indictment, such that he could not be sentenced under § 1326(b)(2). 523 U.S. 224,
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227 (1998). The Supreme Court rejected his argument and held that 8 U.S.C.

§ 1326(b)(2) is a penalty provision, not a separate crime, and that “neither the

statute nor the Constitution requires the Government to charge . . . an earlier

conviction[] in the indictment.” Id. at 226-27. 

The district court did not err in enhancing Gonzalez-Lopez’s sentence using

a prior aggravated felony that was not alleged in the indictment. This practice is

permitted under Almendarez-Torres, which remains binding precedent. See United

States v. Dowd, 451 F.3d 1244, 1253 (11th Cir. 2006) (recognizing that we are

bound by Almendarez-Torres until it is explicitly overruled by the Supreme Court).

Furthermore, Gonzalez-Lopez did not object to the statement in the PSI nor the

government’s proffer that he had a prior conviction that constituted an aggravated

felony. Therefore, he admitted that fact, and the district court did not engage in

any erroneous judicial fact-finding about his prior conviction. See United States v.

Smith, 480 F.3d 1277, 1281 (11th Cir.) (“when a defendant fails to object to a fact

contained in the PSI or in the government proffer at the plea colloquy, the

defendant is deemed to have admitted the fact, which may then be used to enhance

the sentence”) (citation omitted), cert. denied, 128 S.Ct. 175 (2007). 

Accordingly, the district court committed no reversible error, and we affirm.

AFFIRMED.