                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 05-15446                SEPTEMBER 7, 2006
                         Non-Argument Calendar            THOMAS K. KAHN
                                                              CLERK
                       ________________________

                 D. C. Docket No. 04-00444-CR-T-30-MSS

UNITED STATES OF AMERICA,


                                                     Plaintiff-Appellee,

                                  versus

CARLOS MOJA-PLASTICON,
a.k.a. Jairo Guzman,
a.k.a. Kennedy Holl,

                                                     Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                             (September 7, 2006)

Before TJOFLAT, BARKETT and HULL, Circuit Judges.

PER CURIAM:
       Carlos Moja-Plasticon appeals his 60-month sentence for his conviction of

illegally reentering the United States subsequent to conviction for an aggravated

felony, in violation of 8 U.S.C. §§ 1326(a), (b)(2). On appeal, Moja-Plasticon

argues that (1) 8 U.S.C. § 1326 is unconstitutional because it permits judicial

findings to form the basis for increases in the statutory maximum term of

imprisonment, and (2) the increase in the maximum penalty based upon a prior

conviction for an aggravated felony prescribed by 8 U.S.C. § 1326(b)(2) violates

the Double Jeopardy Clause.

       Moja-Plasticon first argues that 8 U.S.C. § 1326 is unconstitutional because

it permits judicial findings to form the basis for increases in the statutory maximum

term of imprisonment, and that characterizing a prior felony as an aggravated

felony is beyond the scope of Almendarez-Torres v. United States, 523 U.S. 224,

(1998).1 We disagree.

       8 U.S.C. § 1326 provides for criminal penalties for an alien who, after being

removed, re-enters the United States without receiving the prior approval of the

Attorney General. If such an alien was removed subsequent to conviction for an

aggravated felony, the statutory maximum term of imprisonment increases from 2



       1
        We review preserved constitutional claims de novo. United States v. Paz, 405 F.3d 946,
948 (11th Cir. 2005).


                                              2
years to 20 years. 8 U.S.C. §§ 1326(a), (b)(2). The sentencing guidelines provide

for a 16-level enhancement where the aggravated felony was a crime of violence.

U.S.S.G. § 2L1.2(b)(1)(A)(ii). We have repeatedly held that Almendarez-Torres is

still good law, and that there is no Sixth Amendment violation in a judicial

determination of the nature of a prior conviction, such as whether or not it was a

violent felony, so long as the district court does not “look beyond the statutory

elements, charging documents, any plea agreement and colloquy or jury

instructions, or comparable judicial record.” United States v. Greer, 440 F.3d

1267, 1273-76 (11th Cir. 2006).

       In this case, Moja-Plasticon’s prior conviction was for first-degree murder.

There is no allegation that the district court went beyond permitted materials in

determining that first-degree murder was a violent and aggravated felony.

Therefore, there was no Sixth Amendment violation.

       Moja-Plasticon further argues, for the first time,2 that the increased statutory

maximum in 8 U.S.C. § 1326(b)(2) violates the Double Jeopardy Clause by twice


       2
         At the district court, Moja-Plasticon conceded that the appropriate statutory maximum was
20 years imprisonment, but later objected to the application of a 16-level enhancement on double
jeopardy grounds. Moja-Plasticon’s argument here centers on the distinction between an increased
penalty within the statutory range—such as the 16-level enhancement—and an increase in the
statutory maximum—such as the one contained in 8 U.S.C. § 1326(b)(2). As the district court was
only presented with an argument as to the constitutionality of an increase within the statutory range,
which Moja-Plasticon now concedes was without merit and asserts is constitutionally distinct from
an increase in the statutory maximum, he failed to preserve his current argument for appeal.


                                                  3
subjecting him to punishment for the same offense.3

        “The Double Jeopardy Clause protects a defendant against the imposition of

multiple punishments for the same offense.” United States v. Kaiser, 893 F.2d

1300, 1303 (11th Cir. 1990). Neither the Supreme Court nor this Court has held

that 8 U.S.C. § 1326(b) violates the Double Jeopardy Clause. We have held, in

general, that consideration of prior convictions in sentencing does not implicate or

violate the Double Jeopardy Clause. See United States v. Fuentes, 107 F.3d 1515,

1522 (11th Cir. 1997). Where no statute, rule, or opinion—of this Court or the

Supreme Court—specifically addresses and resolves an issue, there can be no plain

error. United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).

        Upon careful consideration of the briefs of the parties, and thorough review

of the record, we find no reversible error.

        AFFIRMED.




        3
          A double jeopardy argument asserted for the first time on appeal is subject to plain error
review. United States v. Rahim, 431 F.3d 753, 756-57 (11th Cir.), cert. denied, 126 S.Ct. 1820
(2006). For there to be plain error, the defendant must show that there was error, it was plain, and
it affected substantial rights. United States v. Morris, 286 F.3d 1291, 1293 (11th Cir. 2002). If these
three conditions are met, then we may exercise our discretion to notice the error if it seriously affects
the fairness, integrity, or public reputation of judicial proceedings. Id.


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