[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 13, 2005
No. 05-11909
THOMAS K. KAHN
Non-Argument Calendar CLERK
D. C. Docket No. 04-80154-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENRICK BROWN,
Defendant-Appellant.
_____________________
Appeal from the United States District Court
for the Southern District of Florida
______________________
(December 13, 2005)
Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
In November 2004, a Southern District of Florida grand jury returned a
two-count indictment alleging that appellant and another individual, while on
board a vessel subject to the jurisdiction of the United States, conspired to possess
with intent to distribute a controlled substance, in violation of 46 App. U.S.C. §
1903(j) (Count 1), and possessed with intent to distribute a controlled substance,
in violation of 46 App. U.S.C. § 1903(a) (Count 2). Both counts alleged that the
offense involved 100 kilograms or more of a mixture and substance containing
marijuana and that the mixture and substance containing marijuana weighed at
least 400 kilograms.
On January 3, 2005, appellant pled guilty to Count 1 pursuant to a plea
agreement with the Government, and a presentence investigation report (“PSI”)
was prepared. The PSI classified him as a career offender, and set his adjusted
offense level at 34, pursuant to U.S.S.G. § 4B1.1(a), because he had two prior
felony convictions involving a “crime of violence” and/or controlled substances.
Appellant had been convicted on November 22, 1994, for carrying a concealed
firearm, and on March 7, 1997, for cocaine trafficking. The PSI then reduced the
adjusted offense level of 34 to 31, under U.S.S.G. § 3E1.1, for appellant’s
acceptance of responsibility. Because appellant was a career offender, his criminal
history category was VI. That category combined with a total offense level of 31
yielded a sentencing guideline range of 188-235 months’ imprisonment.
On February 25, 2005, more than a month after the Supreme Court decided
2
United States v. Booker, 543 U.S. ____, 125 S.Ct. 738 (2005), appellant filed
objections to the PSI. He contended among other things that “any prior
convictions used to enhance a sentence must be alleged in the indictment, and [] a
jury should determine whether a prior conviction is proved, and, if proved,
whether it constitutes a crime of violence or controlled substance offense.” He
posited that if the career offender guideline did not apply, he would be eligible for
safety-valve treatment and that the guideline sentence range would be 46-57
months’ imprisonment.
The court held appellant’s sentencing hearing on March 18, 2005.
Appellant had no objections to any of the PSI’s factual recitations, but argued that
he should not be designated as a career offender because the grand jury had not
alleged his prior convictions in the indictment and a petit jury had not found those
convictions beyond a reasonable doubt as required by Apprendi v. New Jersey,
530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Blakely v. Washington,
542 U.S. 296, 124 S.Ct. 2531 (2005), Booker, and Shepard v. United States, 544
U.S. ___, 125 S.Ct. 1254 (2005). As a fall-back argument, while conceding that
this court had classified the crime of carrying a concealed weapon as a “crime of
violence,” he asked the court to adopt the view espoused in cases from other
circuits that a conviction for carrying a concealed firearm is not a crime of
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violence.
The court rejected appellant’s arguments, accepted the PSI’s sentence range,
treated the sentencing guidelines as advisory, considered the sentencing objectives
of 18 U.S.C. § 3553(a)(2), as required by Booker, and sentenced appellant to a
prison term of 188 months. He now appeals his sentence.
Appellant asks that we vacate his sentence on two grounds, neither of which
has merit.1 His first ground, that his prior convictions should have been alleged in
the indictment and established by a jury, ignores Supreme Court precedent, which
we have followed, that expressly exempts prior convictions from the constitutional
rule that district courts may not enhance a sentence based on facts neither admitted
nor established by a jury beyond a reasonable doubt. See United States v.
Gallegos-Aguero, 409 F.3d 1274, 1276-77 (11th Cir. 2005). His second ground,
that carrying a concealed firearm is not a “crime of violence,” ignores our
precedent by which we are bound. See United States v. Gilbert, 138 F.3d 1371
(11th Cir. 1998).
AFFIRMED.
1
In his brief, in listing the issues on appeal, appellant says under Issue II, that he relied
on Blakely and the mandatory nature of the guidelines in entering his plea of guilty to Count 1.
In effect, he appears to be saying that his plea was involuntary. As far as we can tell from the
record, appellant did not move the district court to withdraw his plea on the ground that it was
involuntary – in the sense that he would not have pled guilty had he known that the Supreme
Court, in Booker, would hold that the sentencing guidelines are advisory, not mandatory. We
therefore do not address the issue. If appellant genuinely believes that his plea was involuntary,
he can present the issue to the district court in a motion filed under 28 U.S.C. § 2255.
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