[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 31, 2006
No. 05-12851 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-80131-CR-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARL VEREEN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 31, 2006)
Before DUBINA, HULL and WILSON, Circuit Judges.
PER CURIAM:
Carl Vereen appeals his 120-month sentence imposed after his guilty plea to
knowingly and intentionally distributing at least five grams of a controlled
substance containing “crack” cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B). On appeal, Vereen argues that the district court violated his Fifth
and Sixth Amendment rights by imposing an enhanced mandatory minimum
sentence based on his three prior felony drug convictions. These prior convictions
were neither charged in the indictment nor found by a jury beyond a reasonable
doubt. Vereen acknowledges that Apprendi v. New Jersey, 530 U.S. 466, 489-90,
120 S. Ct. 2348, 2362, 147 L. Ed. 2d 435 (2000), and United States v. Booker, 543
U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), did not overrule
Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d
350 (1998), and acknowledges that the mere fact “of” a prior conviction may be
used to enhance a sentence even if not charged in the indictment or found by a jury
beyond a reasonable doubt. However, Vereen argues that there is a “crucial
distinction” between the “fact of a prior conviction,” which can be constitutionally
found by a judge, and a “fact about a prior conviction,” which must be submitted to
a jury. Vereen asserts that the district court’s finding that his prior convictions
were felony drug offenses and that the convictions became final prior to June 3,
2004, were findings “about” the convictions, which are beyond the scope of
permissible judicial fact-finding. Vereen does not question the accuracy of the
district court’s characterization of the prior convictions.
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We review de novo constitutional errors in sentencing, but will reverse only
for harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).
Pursuant to 21 U.S.C. §§ 841(b)(1)(B) and 851, an individual who
committed an offense under 21 U.S.C. § 841(b)(1)(B) after a prior conviction for a
felony drug offense has become final is subject to a mandatory minimum sentence
of ten years. Without the enhancement for a prior conviction, the mandatory
minimum sentence is five years’ imprisonment. 21 U.S.C. § 841(b)(1)(B).
We recently addressed and rejected the argument “that even if
Almendarez-Torres still permits a judge to determine ‘the existence of a prior
conviction,’ the principles of Apprendi extended through Booker forbid a judge
from determining ‘the factual nature of a prior conviction.’” United States v.
Greer, 11th Cir. 2006, ___ F.3d ___, slip op. at 16 (No. 05-11295, Feb. 24, 2006)
(citations omitted). In Greer, the district court found that the defendant’s prior
indictments and the statutes clearly established that the defendant was previously
convicted of “violent” crimes as defined by the Armed Career Criminal Act (the
“ACCA”). Id., slip op. at 11. However, the district court did not apply the
minimum required by the ACCA for defendants with prior convictions for violent
crimes because it limited the evidence of the prior crimes nature to the state statute
which prohibited both violent and non-violent behavior. Id. The district court
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refused to consider the evidence of the indictments. We held that this refusal was
error and was “not justified in view of our decisions describing the non-effect of
Apprendi and Booker on the Almendarez-Torres rule.” Id., slip op. at 16. Shepard
does not bar judges from finding facts “about” a prior conviction, but “restricts the
sources or evidence that a judge . . . can consider in making that finding.” Id., slip
op. at 16-17. Those sources are “the statutory elements, charging documents, any
plea agreement and colloquy or jury instructions, or comparable judicial record.”
Id., slip op. at 16.
Here, the Government produced judgments of conviction with the
information filed pursuant to 21 U.S.C. § 851. These judgments state that Vereen
was convicted of three prior drug offenses in the state of Florida, namely one
conviction for the second degree felony of possession of cocaine with intent to sell,
in violation of section 893.13(1)(a)(1) of Florida Statutes, and two convictions for
the third degree felony of possession of cocaine, in violation of section
893.13(1)(a)(2) of Florida Statutes. Reading these judgments and the relevant
Florida statutes establishes that Vereen is subject to the mandatory statutory
minimum sentence of ten years because he was previously convicted of felony
drug offenses.
Accordingly, Vereen’s sentence is affirmed.
AFFIRMED.
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