[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-15621
June 2, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-00049-CR-CB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TAIJUAN DESHUN LUCAS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(June 2, 2006)
Before TJOFLAT, BIRCH and MARCUS, Circuit Judges.
PER CURIAM:
Taijuan Lucas appeals his 210-month sentence, which was imposed after he
pled guilty to one count of being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g). On appeal, Lucas argues that the district court erred by
enhancing his sentence, pursuant to the Armed Career Criminal Act (“ACCA”),
based on the court’s finding that he had three qualifying prior convictions under 18
U.S.C. § 924(e). Lucas asserts that, pursuant to Blakely v. Washington, 542 U.S.
296 (2004), his predicate prior convictions must be admitted by him or proven to a
jury beyond a reasonable doubt. Lucas acknowledges that the Supreme Court has
not overruled Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998), in
which the Court held that the government need not allege in the indictment or
prove beyond a reasonable doubt a defendant’s prior convictions for purposes of
enhancing a sentence based on those convictions. Lucas also concedes that we
lack the authority to overrule the Almendarez-Torres decision, but states that he
raises the issue to preserve it for review in the Supreme Court. Pursuant to
Almendarez-Torres and our controlling caselaw, we affirm.
In Almendarez-Torres, the Supreme Court held that the government is not
required to allege in its indictment, nor must it prove beyond a reasonable doubt,
that a defendant had prior convictions in order for a district court to properly use
those convictions to enhance a sentence. Id. The Court went on to hold that
“neither the statute nor the Constitution requires the Government to charge the
factor that it mentions, an earlier conviction, in the indictment.” Id. at 226-272.
We have held that Almendarez-Torres “was left undisturbed by Apprendi [v. New
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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. 296, 303, 124 S. Ct. 2531, 2537, 159 L. Ed. 2d
403 (2004)], and [United States v.] Booker[, 543 U.S. 220, 243-44, 125 S. Ct. 738,
755-756, 160 L. Ed. 2d 621 (2005)].” United States v. Shelton, 400 F.3d 1325,
1329 (11th Cir. 2005). “Put another way, because the prior-conviction exception
remains undisturbed after Booker, a district court does not err by relying on prior
convictions to enhance a defendant’s sentence.” United States v. Orduno-Mireles,
405 F.3d 960, 962 (11th Cir.), cert. denied,--- U.S. ----, 126 S. Ct. 223 (2005); see
also United States v. Gibson, 434 F.3d 1234, 1246 (11th Cir. 2006) (“In sum,
under the Supreme Court’s recent precedents neither the Fifth Amendment nor the
Sixth Amendment prevented the district court from finding the fact of [the
defendant’s] prior convictions, or using them to designate him a . . . career
offender.”).
Given this state of the law, the district court did not err by enhancing
Lucas’s sentence based on prior convictions not alleged in the indictment.
AFFIRMED.
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