United States v. Pulley, Burnis

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604

Submitted May 11, 2006*
Decided May 19, 2006

Before

Hon. THOMAS E. FAIRCHILD, Circuit Judge

Hon. JOHN L. COFFEY, Circuit Judge

Hon. MICHAEL S. KANNE, Circuit Judge

No. 05-4603

UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Indiana, Hammond Division
v.
No. 2:04 CR 12 PS
BURNIS PULLEY,
Defendant-Appellant. Philip P. Simon,
Judge.

ORDER

Burnis Pulley pleaded guilty to being a felon in possession of a firearm, 18
U.S.C. §§ 922(g)(1). The indictment listed five prior state convictions. The district
court found that at least three of them qualified Pulley for an enhanced sentence
under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Those were for
residential burglary, aggravated battery, and robbery, all in 1989. Because of them,
the court sentenced him under the ACCA, which prescribes a minimum sentence of
15 years’ imprisonment, to 200 months.

On appeal, Pulley argues that the prior convictions must not only be alleged
in the indictment but also proved to a jury beyond a reasonable doubt. The

*
On April 17, 2006, we granted the parties’ joint motion to waive oral argument.
Thus, the appeal is submitted on the briefs and the record. See Fed. R. App. P. 34(f).
No. 05-4603 Page 2

Supreme Court has ruled, however, that the Constitution does not require such
pleading or proof of the character of prior convictions. See Almendarez-Torres v.
United States, 523 U.S. 224, 244 (1998); see also United States v. Booker, 543 U.S.
220, 244 (“Any fact (other than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts established by a plea of
guilty or a jury verdict must be admitted by the defendant or proved to a jury
beyond a reasonable doubt.”) (citing Apprendi v. New Jersey, 530 U.S. 466 (2000)).
We are bound by Almendarez-Torres, which has not been overruled.

Pulley suggests, however, that Almendarez-Torres was overruled by
implication by Shepard v. United States, 544 U.S. 13 (2005). We do not agree. See
United States v. Browning, 436 F.3d 780 (7th Cir. 2006). Shepard deals only with
the type of evidence which may be considered in determining that a prior conviction
qualifies for enhancement under the ACCA; police reports or complaint applications
were held to be improper. “[E]nquiry under the ACCA to determine whether a
guilty plea to burglary defined by a nongeneric statute necessarily admitted
elements of the generic offense is limited to the terms of the charging document, the
terms of a plea agreement or transcript of colloquy between judge and defendant in
which the factual basis for the plea was confirmed by the defendant, or to some
comparable judicial record of this information.” Shepard, 544 U.S. at 26. Pulley
makes no argument that the district court made its findings in this case on the
basis of improper information.

AFFIRMED.