[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
------------------------------------------- U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-13321 June 9, 2006
Non-Argument Calendar THOMAS K. KAHN
-------------------------------------------- CLERK
D.C. Docket No. 04-80113-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIC D. CLARK,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(June 9, 2006)
Before EDMONDSON, Chief Judge, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Defendant-Appellant Eric Clark appeals the 300-month sentence imposed
upon his conviction for possession of a firearm by a convicted felon, in violation
of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(e). No reversible error has been
shown; we affirm.
The district court sentenced Clark under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e). Section 924(e) prescribes the penalty for a
defendant who is convicted under 18 U.S.C. § 922(g)(1) of being a felon
unlawfully in possession of a firearm and who has three earlier convictions for a
violent felony or a serious drug offense. Section 924(e)(1) prescribes a minimum
sentence of not less than fifteen years; the authorized statutory maximum is life
imprisonment. See United States v. Brame, 997 F.2d 1426, 1428 (11th Cir. 1993)
(concluding that the “offense statutory maximum” under the ACCA, 18 U.S.C. §
924(e) is life imprisonment). According to the PSI, Clark had four separate
Florida convictions for either sale of cocaine or possession with intent to
distribute. Because Clark had three or more convictions for serious drug offenses,
he was subject to an ACCA section 924(e) enhancement; U.S.S.G. § 4B1.4 applied
to the calculation of his offense level.
Clark objected at sentencing to the ACCA enhancement: he made a
constitutional challenge to application of the enhancement without a jury finding
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on the prior convictions used to support the enhancement. Clark argued that the
continued validity of Almendarez-Torres v. United States, 118 S.Ct. 1219 (1998),
had been undermined by Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), and its
progeny. In Almendarez-Torres, the Supreme Court rejected the argument that
recidivism must be treated as an element of an offense; a sentencing court could
use prior convictions for sentencing enhancement purposes. Id. The district court
implicitly rejected Clark’s Almendarez-Torres argument, applied the enhancement
and stated that absent the ACCA enhancement the court would have departed
upward given Clark’s criminal history.
On appeal, Clark once again maintains that considerable doubt exists about
the continued validity of Almendarez-Torres. Clark maintains that the maximum
statutory sentence for a section 922(g) violation without the enhancement is 10
years; his 300-month sentence far exceeds this maximum. Clark concedes,
however, that his sentence is without reversible error if Almendarez-Torres
remains good law. And Clark acknowledges that we have held that Almendarez-
Torres remains binding law, but he advances his claim so that the issue may be
preserved for subsequent review.
We have rejected on many occasions arguments that Almendarez-Torres has
been, in effect, overruled by later Supreme Court decisions. See United States v.
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Greer, 440 F.3d 1267, 1273-75 (11th Cir. 2006) (reviewing decisions post-
Apprendi and its progeny that affirmed the continuing validity of Almendarez-
Torres). And though we have noted that recent Supreme Court decisions “may
arguably cast doubt on the future prospects of Almendarez-Torres’s holding
regarding prior convictions,” United States v. Camacho-Ibarquen, 410 F.3d 1307,
1316 n. 3 (11th Cir. 2005), cert. denied, 126 S.Ct. 457 (2005), we have stated
repeatedly that “unless and until the Supreme Court specifically overrules
Almendarez-Torres, we will continue to follow it.” Greer, 440 F.3d at 1273.
The Supreme Court has issued no decision overruling specifically
Almendarez-Torres; it remains binding precedent. The district court did not err in
using Clark’s prior convictions to enhance his sentence under the ACCA.
AFFIRMED.
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