
    UNITED STATES of America v. Carlos Enrique DIAZ-HERNANDEZ, Appellant.
    No. 05-5245.
    United States Court of Appeals, Third Circuit.
    Submitted Pursuant to Third Circuit L.A.R. 34.1(a) June 4, 2007.
    Filed: June 12, 2007.
    
      Karen S. Gerlach, Office of Federal Public Defender, Pittsburgh, PA, for Appellant.
    Before: SMITH, COWEN, and SILER, Circuit Judges.
    
    
      
       The Honorable Eugene E. Siler, Senior Circuit Judge for the United States Court of Appeals for the Sixth Circuit, sitting by designation.
    
   OPINION

SMITH, Circuit Judge.

Carlos Enrique Diaz-Hernandez is a native and citizen of Mexico. He was convicted in Bedford County, Pennsylvania of assault and possession of a firearm. Diaz-Hernandez returned to Mexico on April 15, 2003, pursuant to an order of removal issued by an immigration judge in York, Pennsylvania. He understood that he could not reenter the United States without permission.

Diaz-Hernandez illegally reentered the United States on May 1, 2003. On October 25, 2003, the Pennsylvania State Police found Diaz-Hernandez in Bedford, Pennsylvania. Diaz-Hernandez was indicted under 8 U.S.C. § 1326 for knowingly and unlawfully reentering the United States after having been removed. The District Court sentenced him to 46 months imprisonment.

Following the United States Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Diaz-Hernandez sought a remand for resentencing. This Court granted the motion. The District Court imposed the same sentence. This appeal followed.

The District Court exercised jurisdiction over this action under 18 U.S.C. § 3231. This Court has jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.

Diaz-Hernandez argues that, because his prior conviction for an aggravated felony increased his statutory maximum penalty, his prior conviction should have been charged in the indictment and proven to the jury beyond a reasonable doubt. He maintains that failure in either respect violates his rights under the Sixth Amendment.

Diaz-Hernandez concedes that the Supreme Court has settled this issue in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Diaz-Hernandez acknowledges that he pursues this appeal only to preserve this claim should the Supreme Court alter or overturn Almendarez-Torres. 523 U.S. at 243, 118 S.Ct. 1219.

In Almendarez-Torres, the Supreme Court held that 8 U.S.C. § 1326(b)(2), which sets a higher statutory maximum penalty for violators with a prior conviction for an aggravated felony, is a penalty provision, not a separate offense. 523 U.S. at 243, 118 S.Ct. 1219. Therefore, the Government is not required by the Sixth Amendment to charge and prove the prior conviction beyond a reasonable doubt. Id. Almendarez-Torres stands for the principle that prior convictions that increase the statutory maximum penalty for an offense are not elements of the offense and thus may be found by a district court by a preponderance of the evidence. See id.

This Court has held that Almendarez-Torres survived the Supreme Court’s decision in Booker, 543 U.S. at 244, 125 S.Ct. 738. See United States v. Ordaz, 398 F.3d 236, 241 (3d Cir.2005). We mil affirm the District Court’s judgment.  