[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 21, 2005
No. 05-10381
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 04-80090-CR-WJZ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY EUGENE JONES,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 21, 2005)
Before BIRCH, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Appellant Gregory Eugene Jones appeals his 180-month sentence imposed
after pleading guilty to one count of possession of ammunition that has traveled in
interstate commerce, after having been previously convicted of a crime punishable
by imprisonment for a term exceeding 1 year, in violation of 18 U.S.C. §
922(g)(1). The district court imposed the mandatory minimum sentence pursuant
to the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), based upon Jones’s
admissions that he had committed three prior qualifying felonies.
On appeal, Jones argues that his mandatory minimum sentence violates the
Fifth Amendment because it was based upon prior convictions that were not
charged in the indictment and because he never admitted that his prior convictions
were for crimes of violence or serious drug offenses. He argues that the
commission of the three prior crimes of violence or serious drug offenses was a
necessary element of the crime charged pursuant to the Armed Career Criminal
Act, 18 U.S.C. § 924(e). Although Jones recognizes that the United States
Supreme Court in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct.
1219, 140 L. Ed. 2d 350 (1998), rejected this type of argument, and that this is the
controlling precedent, he asserts that the Supreme Court’s subsequent opinions in
Apprendi v. New Jersey, 530 U.S. 466, 489-90, 120 S. Ct. 2348, 2362-63, 147 L.
Ed. 2d 435 (2000), Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531, 159 L.
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Ed. 2d 403 (2004), and Shepard v. United States ___ U.S. ___, 125 S. Ct. 1254,
161 L. Ed. 2d 205 (2005), undermine the rationale of this opinion, and that today,
the majority of the Supreme Court no longer subscribes to its previous holding on
this issue.
Since Jones preserved his constitutional claim in the district court, we
review his sentence de novo, but will reverse only for harmful error. United States
v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).
In Almendarez-Torres v. United States, the Supreme Court held that the
government need not allege in its indictment and need not prove beyond a
reasonable doubt that a defendant had prior convictions for a district court to use
those convictions for purposes of enhancing a sentence. Almendarez-Torres, 523
U.S. at 228; 118 S. Ct. at 1223. In Apprendi, the Supreme Court declined to
revisit Almendarez-Torres, and held that, “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” Apprendi, 530 U.S. at 489-90, 120 S. Ct. at 2362-63. See also United
States v. Thomas, 242 F.3d 1028, 1035 (11th Cir. 2001) (observing that Apprendi
specifically excluded the fact of a prior conviction from its holding and affirming
18 U.S.C. § 924(e)(1)-enhanced sentence, pursuant to Almendarez-Torres).
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The Supreme Court in Harris v. United States, 536 U.S. 545, 122 S. Ct.
2406, 153 L. Ed. 2d 524 (2002), dealt with the application of Apprendi to a statute
increasing the mandatory minimum sentence based on facts neither charged in the
indictment nor proved to a jury beyond a reasonable doubt. In Harris, the
defendant was convicted of violating the federal drug and firearms laws, which
included a provision that anyone who brandished a weapon during his crime was
to be sentenced to a mandatory minimum 7 years’ imprisonment. Harris, 536 U.S.
at 550-51, 122 S. Ct. at 2410-11; see 18 U.S.C. § 924(c)(1)(A). The indictment
said nothing about brandishing a weapon and did not reference this statute;
however, the defendant was sentenced to the mandatory minimum sentence based
on the sentencing judge’s finding by a preponderance of the evidence that the
defendant brandished a weapon. Harris, 536 U.S. at 551, 122 S. Ct. at 2411.
When discussing the effect of the Apprendi rule on the factual findings
made by the sentencing judge, the Supreme Court held that there was a
fundamental difference between factual findings used to extend the defendant’s
sentence beyond the statutory maximum, and those used to increase the mandatory
minimum (but not extending the sentence beyond the statutory maximum), holding
that a statute may reserve the latter factual finding for the judge, without violating
the Constitution. Harris, 536 U.S. at 566, 122 S. Ct. at 2419 (“it is beyond dispute
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that the judge’s choice of sentences within the authorized range may be influenced
by facts not considered by the jury”).
The Supreme Court revisited the Apprendi rule in Blakely v. Washington, in
the context of Washington state’s sentencing guideline scheme, and clarified that
“the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge
may impose solely on the basis of the facts reflected in the jury verdict or admitted
by the defendant.” Blakely, 542 U.S. at ___, 124 S. Ct. at 2534-2538.
In its recent Booker decision, the Supreme Court again reaffirmed its
holding first pronounced in Apprendi, holding that “[a]ny 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.” United
States v. Booker, 543 U.S. at ___, 125 S. Ct 738, 756, 160 L. Ed. 2d 621 (2005).
“The reason for the exception for prior convictions is clear: ‘a prior conviction
must itself have been established through procedures satisfying the fair notice,
reasonable doubt, and jury trial guarantees.’” United States v. Orduno-Mireles,
405 F.3d 960, 962 (11th Cir. 2005) (quoting Jones v. United States, 526 U.S. 227,
249, 119 S. Ct. 1215, 1227, 143 L. Ed. 2d 311 (1999)).
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Because in Jones’s case, like in Harris, the application of the armed career
criminal provision merely triggered a mandatory minimum sentence, and did not
act to increase Jones’s sentence beyond the statutory maximum, we conclude no
constitutional violation occurred when the judge imposed a mandatory minimum
sentence based upon prior convictions that were not alleged in the indictment.
Accordingly, we affirm Jones’s sentence.
AFFIRMED.
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