[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 18, 2005
No. 05-10948
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 00-00527-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODNEY DEMARIUS GIDDENS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 18, 2005)
Before CARNES, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Rodney Demarius Giddens appeals his 180-month sentence for possession of
a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g), 924(e). On
appeal, Giddens argues that the district court erred under United States v. Booker,
543 U.S. ____, 125 S.Ct. 738, 756, 160 L.Ed.2d 621 (2005), by enhancing his
sentence pursuant to the Armed Career Criminal provision because the fact and
characterization of the prior convictions were not alleged in the indictment or
proved to the jury beyond a reasonable doubt. Giddens interprets Blakely v.
Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), to state that
the use of a prior conviction to enhance a sentence violates the Fifth and Sixth
Amendments the same as any other fact
Next, Giddens argues for the first time on appeal that it is unclear what
documents the court viewed in determining that his prior convictions qualified as
predicate offenses within the meaning of the Armed Career Criminal Act
(“ACCA”). Giddens notes the Supreme Court’s holding in Shepard v. United
States, 544 U.S. ____, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), which restricts the
types of documents that the court can view in assessing whether a prior conviction
is a qualifying offense under the ACCA.
We affirm. We have made clear that Almendarez-Torres "was left
undisturbed by Apprendi, Blakely, and Booker." United States v. Shelton, 400
F.3d 1325, 1329 (11th Cir. 2005). Moreover, we have noted that, while recent
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decisions, including Shepard, may arguably cast doubt on the future prospects of
Almendarez-Torres, the Supreme Court has not explicitly overruled Almendarez-
Torres, and, as a result, we must follow Almendarez-Torres. United States v.
Camacho-Ibarquen, 410 F.3d 1307, 1316 n.3 (11th Cir. 2005). We note that there
is no Booker statutory error because Giddens received a sentence of 180 months’
imprisonment, which was the statutory minimum sentence. District courts are still
bound by statutory minimum sentences after Booker. Shelton, 400 F.3d at 1333
n.10. Therefore, even if the district court did apply the guidelines in a mandatory
fashion, the error was harmless because the court could not have imposed a lesser
sentence due to the statutory minimum. United States v. Raad, 406 F.3d 1322,
1323 n.1 (2005).
Finally, because Giddens argues for the first time on appeal that the record is
unclear as to what documents the district court used in assessing his prior
convictions under ACCA, we review for plain error. United States v. Rodriguez,
398 F.3d 1291, 1297 (11th Cir.), cert. denied 125 S.Ct. 2935 (2005). We “may not
correct an error the defendant failed to raise in the district court unless there is: (1)
error, (2) that is plain, and (3) that affects substantial rights.... Even then, [this
Court] will exercise [its] discretion to rectify the error only if it seriously affects
the fairness, integrity, or public reputation of judicial proceedings.” Id. at 1298.
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The Armed Career Criminal Act “mandates a formal categorical approach,
looking only to the statutory definitions of the prior offenses, and not to the
particular facts underlying those convictions” when applying the sentencing
enhancement. Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 2159,
109 L.Ed.2d 607 (1990). The Supreme Court held in Shepard that a sentencing
court may not rely on police reports or complaint applications in deciding whether
a prior conviction was a "generic burglary," in the context of determining whether
the conviction is a "violent felony" under ACCA. Shepard, 543 U.S. at ____, 125
S.Ct. at 1263. Instead, when it is impossible to determine from the face of the
judgment or statute whether the prior conviction satisfies the enhancement statute,
the district court's review "is limited to the terms of the charging document, the
terms of the 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." Id.
Upon review of the record and upon consideration of the parties’ briefs, we
find no reversible error. The sentencing court here did not err under Shepard in
determining that Giddens’s prior convictions qualified as violent felonies under
ACCA. At the sentencing hearing, Giddens’s counsel referred the court to the
sentencing transcript from Giddens’s 1997 convictions, which he had submitted to
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the court with a copy of his pending state habeas corpus petition. The
government’s counsel then referenced the indictment and the sentencing document
submitted by Giddens’s counsel. In reaching its conclusion regarding the number
of Giddens’s prior convictions, the court stated:
But if you look at the overall picture, the colloquy during the plea
and the – and the – and [the court’s] sentencing and what [the
court is] going over and the fact, and the fact that there certainly
appear to be separate offenses . . . It’s a fair conclusion and a proper
conclusion to decide that he is being sentenced for five counts
involving burglary and one attempted armed robbery . . . And it is
clear that these are, as a matter of fact, separate and distinct offenses.
Therefore, the district court did not err under Shepard in assessing the number of
prior convictions under ACCA, because the sentencing transcript reveals that the
court viewed the plea colloquy, the indictment, and sentencing document, which
are all acceptable documents under Shepard. While the court did not state
explicitly what documents it viewed in characterizing Giddens’s prior convictions
as qualifying offenses under ACCA, the court issued its finding that Giddens
qualified as an Armed Career Criminal immediately after its discussion of the
number of his prior convictions, which strongly suggests that the court relied upon
the same documents submitted by Giddens to characterize the prior convictions.
AFFIRMED.
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