Case: 14-10256 Document: 00512870107 Page: 1 Date Filed: 12/15/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-10256
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
December 15, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
JAMES LEWIS,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:13-CR-177-1
Before STEWART, Chief Judge, and ELROD and HIGGINSON, Circuit
Judges.
PER CURIAM: *
James Lewis was convicted of one count of possession of a firearm by a
convicted felon and one count of possession with intent to distribute cocaine
base. He was sentenced to a total of 210 months of imprisonment and three
years of supervised release.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-10256
Lewis argues that the district court’s application of U.S.S.G. § 4B1.1 was
the result of judicial factfinding that violated the Fifth and Sixth Amendments.
He asserts that the career-offender provision in effect establishes a mandatory
minimum sentence and, under Alleyne v. United States, 133 S. Ct. 2151 (2013),
the facts supporting his career-offender status must be found by a jury beyond
a reasonable doubt. We review his arguments de novo. See United States v.
Hernandez, 633 F.3d 370, 373 (5th Cir. 2011).
In Alleyne, the Supreme Court concluded that any fact that increases a
defendant’s statutory minimum sentence must be found beyond a reasonable
doubt by a jury. 133 S. Ct. at 2163. Here, neither offense of conviction exposed
Lewis to a mandatory minimum sentence, see 18 U.S.C. § 924(a)(2); 21 U.S.C.
§ 841(b)(1)(C), and no statutory minimum was applicable because of the career-
offender enhancement. The district court properly exercised its authority to
find facts that affect the guidelines range and to exercise its sentencing
discretion; thus, Alleyne is inapplicable. See Alleyne, 133 S. Ct. at 2163; United
States v. Tuma, 738 F.3d 681, 693 (5th Cir. 2013), cert. denied, 134 S. Ct. 2875
(2014). Also, the status of Lewis as a career offender does not involve a finding
other than the fact of a prior conviction and, therefore, the narrow exception
set forth in Almendarez-Torres v. United States, 523 U.S. 224, 239-47 (1998),
applies. See United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United
States v. Guevara, 408 F.3d 252, 261 (5th Cir. 2005).
Lewis also argues that the district court erred in enhancing his sentence
under § 4B1.1 because his Texas offense of possession with intent to deliver is
not a controlled substance offense. He concedes that his argument is foreclosed
by United States v. Ford, 509 F.3d 714, 717 (5th Cir. 2007), but he argues that
Ford was wrongly decided. We may not overrule the decision of a prior panel
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Case: 14-10256 Document: 00512870107 Page: 3 Date Filed: 12/15/2014
No. 14-10256
in the absence of en banc decision or a superseding Supreme Court decision.
See United States v. Lipscomb, 299 F.3d 303, 313 & n.34 (5th Cir. 2002).
AFFIRMED.
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