[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
February 29, 2008
No. 07-12087 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-20129-CR-PCH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NEVIA KEVIN ABRAHAM,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 29, 2008)
Before BARKETT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Nevia Kevin Abraham appeals his sentence for conspiracy to kidnap a U.S.
Postal Service employee, kidnapping of a U.S. Postal Service employee, use of a
firearm during a crime of violence, forcible assault on a U.S. Postal Service
employee, and possession of a firearm by a convicted felon. 18 U.S.C. §§ 111,
924(c)(1), 924(e)(1), 1201(a)(5), 1201(c). On appeal, Abraham argues that he
should not have received a ten-year statutory minimum penalty under 18 U.S.C.
§ 924(c) for the discharge of a firearm during the commission of a crime of
violence because he was not charged with the discharge, nor did a jury find that he
discharged a firearm. Abraham claims that the dispositive case on the issue, Harris
v. United States, 536 U.S. 545 (2002), was decided before the Supreme Court’s
holdings in Blakely v. Washington, 542 U.S. 296 (2004), and United States v.
Booker, 543 U.S. 220 (2005), so its holding is in doubt. Abraham concedes that
we have stated that we will continue to follow Harris, but argues that its viability is
limited, and we should determine that the discharge of a firearm had to be proved
to a jury beyond a reasonable doubt.
We review constitutional challenges to a sentence de novo. United States v.
Chau, 426 F.3d 1318, 1321 (11th Cir. 2005). Pursuant to 18 U.S.C.
§ 924(c)(1)(A)(iii), any person who, during a crime of violence discharges a
firearm shall be sentenced to a mandatory minimum sentence of imprisonment of
10 years. Kidnapping is a “crime of violence.” U.S.S.G. § 4B1.2 cmt. n.1.
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In Harris, the Supreme Court determined that judicial fact finding that
increases a statutory mandatory minimum sentence under § 924(c) is appropriate
where a jury verdict has authorized the imposition of a statutory minimum
sentence. 536 U.S. at 567–568. In Booker, the Supreme Court explicitly
reaffirmed its holding in Apprendi 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.” Booker, 543 U.S. at
244. Nothing in Booker, however, eliminated or declared unconstitutional
mandatory minimum sentences as provided for by Congress in addressing firearm
crimes, and the Supreme Court has not overruled Harris since deciding Booker.
We have stated that we are unpersuaded that the Apprendi v. New Jersey,
530 U.S. 466 (2000), Blakely, and Booker line of cases compel a jury
determination of the sentencing factors in § 924(c)(1)(B), which are specific to the
kind of firearm used in the offense. United States v. Ciszkowski, 492 F.3d 1264,
1268 (11th Cir. 2007). “The Supreme Court . . . has declined to extend the
jury-determination requirement to facts triggering a statutory minimum. Section
924(c)(1)(B) only triggers minimum sentences, and therefore does not raise
Apprendi concerns.” Id. at 1269 (citing Harris).
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Further, we have stated that “[i]t is not given to us to overrule the decisions
of the Supreme Court. We have stated repeatedly . . . that ‘we are not at liberty to
disregard binding case law that is so closely on point and has been only weakened,
rather than directly overruled, by the Supreme Court.’ This is so even if we are
convinced that the Supreme Court will overturn its previous decision the next time
it addresses the issue.” United States v. Gibson 434 F.3d 1234, 1246 (11th Cir.
2006).
The district court did not err in sentencing Abraham to a consecutive ten-
year mandatory minimum sentence. Trial evidence showed that Abraham
discharged a firearm during a kidnapping. Therefore, the district court correctly
applied the mandatory minimum sentence pursuant to § 924(c)(1)(A)(ii). The
Supreme Court has stated in Harris that a district court may engage in fact finding
to increase a statutory mandatory minimum penalty relating to § 924(c). Although
Abraham argues that Harris is no longer valid or is damaged, the Supreme Court
has not overruled that case, so we are bound to follow it. Accordingly, we affirm.
AFFIRMED.
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