USA v. Wayne Anthony Joseph, (11th Cir. 2006)

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[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

F O R THE ELEVENTH CIRCUIT FILED

U .S . COURT OF APPEALS

E L E V E N T H CIRCUIT

F e b r u a r y 14, 2006

N o . 05-12573 T H O M A S K. KAHN

N o n - A r g u m e n t Calendar CLERK

D . C. Docket No. 05-00013-CR-J-12HTS

U N IT E D STATES OF AMERICA,

Plaintiff-Appellee,

versus

WAYNE ANTHONY JOSEPH,

Defendant-Appellant.

A p p e al from the United States District Court

fo r the Middle District of Florida

(F eb ru a ry 14, 2006)

B efo re BLACK, BARKETT and PRYOR, Circuit Judges.

P E R CURIAM:

W a yn e Anthony Joseph appeals his sentence for illegal reentry after

d ep o rtatio n . 8 U.S.C. § 1326. The penalty for illegal reentry after deportation is tw o years of imprisonment. Because Joseph was previously convicted of an ag g rav ated felony, he was sentenced to 57 months of imprisonment under section 1 3 2 6 (b )(2 ).

Joseph argues that his sentence is unconstitutional in the light of Apprendi v. N ew Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and its progeny. Joseph co n ced es that under Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct.

1 2 1 9 , a previous conviction is a sentencing factor that need not be pleaded in the in d ictm en t but argues that Almendarez-Torres has been repudiated by a majority of th e Supreme Court Justices and should not be followed. "We have held that A lm e n d a r e z- T o r r es remains the law until the Supreme Court determines that A lm en d arez-T o rres is not controlling precedent." United States v. Orduno-Mireles, 4 0 5 F.3d 960, 963 (11th Cir.), cert. denied 126 S. Ct. 223 (2005) (internal q u o tatio n marks and citation omitted). The sentence is AFFIRMED.

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