Opinion
No. 08-16830 Non-Argument Calendar.
May 29, 2009.
Appeal from the United States District Court for the Southern District of Florida D. C. Docket No. 08-60162-CR-DTKH.
Before DUBINA, PRYOR and ANDERSON, Circuit Judges.
Appellant Otis Fearon appeals his 41-month sentence for illegally reentering the United States after deportation as a convicted felon, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Fearon argues that the 16-level increase to his offense level, added for his prior felony convictions under U.S.S.G. § 2L1.1(b)(1)(A), violates his Fifth and Sixth Amendment rights that any aggravating sentencing fact be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.
We review de novo constitutional challenges to a sentence. United States v. Cantellano, 430 F.3d 1142, 1144 (11th Cir. 2005).
In Almendarez-Torres, 523 U.S. 224, 226-227, 118 S. Ct. 1219, 1222, 140 L. Ed. 2d 350 (1998), the Supreme Court held that prior convictions need not be charged in the present indictment to support sentence enhancements. We held, in United States v. Thomas, 242 F.3d 1028 (11th Cir. 2001), that we are "bound to follow Almendarez-Torres unless and until the Supreme Court itself overrules that decision." Id. at 1035.
Based on binding precedent from the Supreme Court and our court, we conclude that the district court did not err in imposing the enhancement. Accordingly, we affirm Fearon's sentence.
AFFIRMED.