Opinion
No. 10-14124 Non-Argument Calendar.
March 30, 2011.
Anne R. Schultz, Harriett Galvin, U.S. Attorney's Office, Miami, FL, Robert H. Waters, Jr., United States Attorney's Office, West Palm Beach, FL, for Plaintiff-Appellee.
Robin Cindy Rosen-Evans, Federal Public Defender's Office, West Palm Beach, FL, Kathleen M. Williams, Federal Public Defender, Federal Public Defender's Office, Miami, FL, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 9:10-cr-80049-KAM-1.
Before BARKETT, MARCUS and FAY, Circuit Judges.
Lashawn Lorenza Anderson appeals his sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). On appeal, Anderson contends that the district court violated his Fifth and Sixth Amendment rights by sentencing him to an enhanced term of imprisonment as an armed career criminal based on prior convictions that were not alleged in the indictment. He asserts that Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) prohibits a district court from making factual findings concerning the nature of a defendant's prior convictions. Anderson concedes, however, that his argument is foreclosed by precedent. For the reasons stated below, we affirm.
We review constitutional issues de novo. United States v. Steed, 548 F.3d 961, 978 (11th Cir. 2008). In Almendarez-Torres, the Supreme Court explained that a prior conviction used to enhance a sentence is not an element of the offense, and, therefore, it need not be alleged in the indictment or found by a jury beyond a reasonable doubt. Almendarez-Torres, 523 U.S. at 226-27, 118 S.Ct. at 1222. Although Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and subsequent cases have cast doubt on the reasoning of Almendarez-Torres, we have explained that we will continue to follow Almendarez-Torres unless and until that case is expressly overruled by the Supreme Court. See, e.g. United States v. Greer, 440 F.3d 1267, 1273-76 (11th Cir. 2006); Steed, 548 F.3d at 978-80; United States v. Camacho-Ibarquen, 410 F.3d 1307, 1316 n. 3 (11th Cir. 2005).
The Supreme Court's decision in Shepard holds that, in determining whether a prior conviction is a predicate felony for purposes of the Armed Career Criminal Act, the district court may only consider the statute of conviction, charging documents, any plea agreement or jury instructions, or similar judicial records. Shepard, 544 U.S. at 26, 125 S.Ct. at 1263. In Greer, we observed that Shepard did not bar district courts from determining whether a defendant's prior convictions are serious drug crimes or crimes of violence. Greer, 440 F.3d at 1275. Instead, Shepard merely "restricts the sources or evidence that a judge (instead of a jury) can consider in making that finding." Id. Thus, the holding in Shepard did not affect the continuing validity of Almendarez-Torres.
In this case, the district court did not violate Anderson's constitutional rights by sentencing him as an armed career criminal. Because Anderson's prior convictions were not elements of his offense, they did not have to be charged in the indictment. See Almendarez-Torres, 523 U.S. at 226-27, 118 S.Ct. at 1222. Anderson correctly concedes that Almendarez-Torres remains the law of this Circuit until that case is expressly overruled by the Supreme Court. See Greer, 440 F.3d at 1273-76; Steed, 548 F.3d at 978-80; Camacho-Ibarquen, 410 F.3d at 1316 n. 3. Moreover, we have explained that Shepard does not prohibit a district court from making factual findings about the nature of a defendant's prior convictions. See Greer, 440 F.3d at 1275. Accordingly, after review of the record and the parties' briefs, we affirm Anderson's sentence.