United States v. Otis O'Brien Fearon

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS

FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT

MAY 29, 2009 No. 08-16830 THOMAS K. KAHN

Non-Argument Calendar CLERK

________________________ D. C. Docket No. 08-60162-CR-DTKH

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

OTIS O'BRIEN FEARON, a.k.a. Brien Fearon,

Defendant-Appellant.

________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (May 29, 2009)

Before DUBINA, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

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 (11 th 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.