IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10814
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALVIRTIS SMITH, JR.,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
USDC No. 5:00-CR-25-1-C
April 2, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Alvirtis Smith, Jr. appeals his conviction following a guilty
plea for possessing a firearm after having been convicted of a
felony.1 Smith contends that, because his three prior drug-
trafficking convictions were not alleged in the indictment, the
district court erroneously sentenced him to a fifteen-year prison
term pursuant to 18 U.S.C. § 924(e). Smith concedes that in
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
See 18 U.S.C.A. § 922(g) (2000).
Almendarez-Torres v. United States,2 the Supreme Court held that a
prior felony conviction under 8 U.S.C. § 1326(b)(2) was merely a
sentencing factor and thus need not be alleged in the indictment.
He observes, however, that the Supreme Court in Apprendi v. New
Jersey3 stated that "it is arguable that Almendarez-Torres was
incorrectly decided." Smith concedes that Almendarez-Torres
forecloses the issue, and raises it only to preserve his right to
further review by the Supreme Court.
This Court has held that "[b]ecause § 924(e)(1) does not
create a separate offense but is merely a sentence enhancement
provision, the three previous convictions required by § 924(e) are
not an element of the [§ 922(g)] offense."4 Our precedent
consequently disposes of Smith's appeal. "[O]ne panel of this Court
cannot disregard the precedent set by a prior panel even if it
disagrees with the prior panel decision. Absent an overriding
Supreme Court decision or a change in the statutory law, only the
court sitting en banc can do this."5 We must therefore AFFIRM the
district court's judgment.
2
523 U.S. 224 (1998).
3
530 U.S. 466, 120 S. Ct. 2348, 2362 (2000).
4
United States v. Affleck, 861 F.2d 97, 98 (5th Cir. 1988);
accord United States v. Dorris, 236 F.3d 582, 586-88 (10th Cir.
2000).
5
Girard v. Drexel Burnham Lambert, Inc., 805 F.2d 607, 610
(5th Cir. 1986).
2
AFFIRMED.
3