UNITED STATES of America, Plaintiff-Appellee, v. Federico MARTINEZ-VENTURA, Defendant-Appellant, 138 F. App'x 525

PER CURIAM: Federico Martinez-Ventura was sentenced to a thirteen-month term of imprisonment and a one-year term of supervised release after he pled guilty to illegal reentry, 8 U.S.C. § 1326(a) (2000). Martinet Ventura appeals, arguing that his sentence, based in part on criminal history points for prior sentences not alleged in the indictment, violated his Sixth Amendment right to jury trial under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d403 (2004). We affirm Martinez-Ventura argues that Blakely brings into question the viability of Almendarez-Torres v.

United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (holding that prior felony convictions are merely sentencing enhancements, rather than elements of the offense). He contends that the district court erred by placing him in criminal history category V when the indictment did not charge that he had been convicted of prior crimes, and the court thus violated his right to have facts that increase the maximum sentence be charged in an indictment, submitted to a jury, and proved beyond a reasonable doubt. Because Martinez-Ventura did not raise the issue below, review is for plain error.

United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). In Almendarez-Torres, the Supreme Court held that “the government need not allege in its indictment and need not prove beyond reasonable doubt that a defendant had prior convictions for a district court to use those convictions for purposes of enhancing a sentence.” In Apprendi v.

New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2005), the Supreme Court held “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory minimum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi did not overrule Almendarez-Torres, and the Court recently reaffirmed its holding in Apprendi. See United States v. Booker,—U.S.-,—, 125 S.Ct. 738, 756, 160 L.Ed.2d 621 (2005).

Therefore, we conclude that the district court did not err in considering Martinez-Ventura’s prior sentences to calculate his criminal history. Because Martinez-Ventura has not shown any error in the calculation of his eleven criminal history points, we affirm the sentence imposed by the district court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED Martinez-Ventura was released from confinement on November 9, 2004.

We retain jurisdiction over the appeal because his term of supervised release has not yet elapsed and legally could be reduced to less than one year as his offense was a Class E felony. 18 U.S.C. § 3583(b)(3) (2000) (term of supervised release for a Class E felony may not be more than one year); United States v. Trotter, 270 F.3d 1150, 1153 (7th Cir.2001) (defendant's appeal may avoid mootness if term of supervised release may be shortened).