[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 30, 2006
No. 06-12799 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-80159-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEVEN ROBINSON PINKNEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 30, 2006)
Before DUBINA, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Steven Robinson Pinkney appeals his 180-month sentence for possession of
a firearm and ammunition by a convicted felon in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e). Pinkney argues that his mandatory minimum sentence as
an armed career criminal violated his Sixth Amendment rights because the prior
convictions underlying his armed career criminal classification were neither
alleged in the indictment nor admitted by Pinkney.
Because Pinkney objected to the enhancement of his sentence in the district
court, we review the sentence de novo. United States v. Paz, 405 F.3d 946, 948
(11th Cir. 2005). Under 18 U.S.C. § 924(e), a § 922(g) offender who has three
prior convictions for a violent felony or serious drug offense is subject to a
mandatory 15-year minimum sentence. In Almendarez-Torres v. United States, the
Supreme Court held that a prior conviction is not a fact which must be admitted by
a defendant or found by a jury beyond a reasonable doubt. 523 U.S. 224, 258, 118
S.Ct. 1219, 1238, 140 L.Ed.2d 350 (1998). In addition, the Supreme Court held
that an earlier conviction, which merely authorizes a court to increase a sentence
for recidivism, is not required to be alleged in the indictment. Almendarez-Torres,
523 U.S. at 226, 118 S.Ct. 1222. In its subsequent seminal decisions in 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, 159 L.Ed.2d 403 (2004), and United
States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the
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Supreme Court reaffirmed the holding in Almendarez-Torres. See United States v.
Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005). In Apprendi, the Court 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 490, 120 S.Ct. at
2362-63 (emphasis added). The Court revisited Apprendi in Blakely, clarifying
"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[;]" it did not disturb Apprendi's exception for prior
convictions. Blakely, 542 U.S. at 303, 124 S.Ct. at 2537 (emphasis added).
Subsequently, in Booker, the Court held that Blakely applied to the Federal
Sentencing Guidelines and reaffirmed its holding in Apprendi. 543 U.S. at 243-44,
125 S.Ct. at 755-56.
Shortly after handing down its decision in Booker, the Supreme Court
decided Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205
(2005). In Shepard, the Supreme Court limited the types of evidence a district
court can constitutionally consider to determine whether a prior burglary
conviction qualifies as a violent felony for purposes of the Armed Career Criminal
Act ("ACCA") where the statutory definition of burglary includes both violent and
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non-violent conduct. Shepard, 544 U.S. at 26, 125 S.Ct. at 1263. A plurality of
the Court explained that, while a dispute over whether a burglary was a violent
felony, for purpose of the ACCA, could be "described as a fact about a prior
conviction, it [was] too far removed from the conclusive significance of a prior
judicial record, and too much like the findings subject to Jones [v. United States,
526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)] and Apprendi to say that
Almendarez-Torres clearly authorizes a judge to resolve the dispute." Shepard, 544
U.S. at 25, 125 S.Ct. at 1262.
Since Shepard, we have consistently held that Almendarez-Torres remains
good law "until the Supreme Court determines that Almendarez-Torres is not
controlling precedent." United States v. Orduno-Mireles, 405 F.3d 960, 963 (11th
Cir.), cert. denied, 126 S.Ct. 233 (2005). See also United States v.
Camacho-Ibarquen, 410 F.3d 1307, 1316 n.3 (11th Cir.), cert. denied, 126 S.Ct.
457 (2005)("Although recent decisions, including Shepard . . . , may arguably cast
doubt on the future prospects of Almendarez-Torres's holding regarding prior
convictions, the Supreme Court has not explicitly overruled Almendarez-Torres.
As a result, we must follow Almendarez-Torres.")(citations omitted). Further, this
Court has held that, for ACCA purposes, district courts may determine both the
existence of a conviction and the nature of a conviction, to the extent it appears in
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the "statutory elements, charging documents, any plea agreement and colloquy or
jury instructions, or comparable judicial record." United States v. Greer, 440 F.3d
1267, 1275 (11th Cir. 2006). Therefore, "Shepard does not bar judges from
finding whether prior convictions qualify for ACCA purposes; it restricts the
sources or evidence that a judge (instead of a jury) can consider in making that
finding." Id.
Upon review of the record and consideration of the parties’ briefs, we
discern no reversible error. Until the Supreme Court specifically overrules
Almendarez-Torres, it remains binding precedent. According to
Almendarez-Torres, prior convictions are not facts which must be admitted by a
defendant, alleged in the indictment, or found by a jury beyond a reasonable doubt.
We have previously held that district courts may determine both the fact and nature
of prior convictions for ACCA purposes. Therefore, the district court did not err
by enhancing Pinkney's sentence based on his prior convictions that were neither
alleged in the indictment nor admitted by Pinkney.
AFFIRMED
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