[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 12, 2008
THOMAS K. KAHN
No. 07-14735
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 07-00020-CR-4-RH-WCS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS TIRAN MCCRAY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(May 12, 2008)
Before TJOFLAT, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Carlos Tiran McCray appeals his sentence of 188 months’ imprisonment for
possession of a firearm by a convicted felon. McCray invites us to revisit our
holding in United States v. Burge, 407 F.3d 1183, 1190-91 (11th Cir. 2005), that
juvenile adjudications provide sufficient safeguards to ensure the reliability
required by Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), and thus under the
Sixth Amendment are a permissible basis on which to classify a defendant as an
armed career criminal and enhance his sentence accordingly. McCray asserts
circuit courts are divided over whether Apprendi’s exception for prior convictions
extends to juvenile adjudications that were not tried by a jury.
We review de novo legal questions concerning the Constitution. United
States v. Noel, 231 F.3d 833, 836 (11th Cir. 2000). In Apprendi, 120 S. Ct. at
2362-63, the Supreme Court held “[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.”
Recognizing this exception, we have stated “[t]he government need not allege in its
indictment and need not prove beyond a reasonable doubt that a defendant had
prior convictions for a district court to use those convictions for purposes of
enhancing a sentence.” Burge, 407 F.3d at 1188 (quotations omitted). In Burge,
we held prior juvenile adjudications fell within Apprendi’s prior conviction
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exception. See Burge, 407 F.3d at 1191 (“At a minimum, however, Apprendi’s
prior conviction exception is based on the procedural safeguards that attach to a
prior conviction or juvenile adjudication.”). “[O]nly the Supreme Court or this
Court sitting en banc can judicially overrule a prior panel decision.” United States
v. Marte, 356 F.3d 1336, 1344 (11th Cir. 2004).
As McCray concedes, Burge decides this issue. A prior juvenile
adjudication that is not subject to a jury trial can be used as a basis for a sentence
enhancement under the Armed Career Criminal Act, 18 U.S.C. § 924(e). Thus, the
district court did not err by categorizing McCray as an armed career criminal based
on prior juvenile adjudications.
AFFIRMED.
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