[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Aug. 22, 2008
No. 08-11111 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-14068-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GLENN LYMAN TIPPINS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 22, 2008)
Before BIRCH, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Glenn Lyman Tippins appeals his 151-month sentence as a career offender,
pursuant to U.S.S.G. § 4B1.1(a), because his prior convictions on which his
enhancement was based were neither alleged in the indictment, nor proven to a
jury. Tippins argues that, pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120
S. Ct. 2348 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531
(2004), the enhancement of his sentence was a violation of his Fifth and Sixth
Amendment rights.
We review de novo questions concerning the constitutionality of a sentence.
United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005) (per curiam). The career
offender provision, under which Tippins was sentenced, states:
A defendant is a career offender if (1) the defendant was at least
eighteen years old at the time the defendant committed the instant
offense of conviction; (2) the instant offense of conviction is a felony
that is either a crime of violence or a controlled substance offense; and
(3) the defendant has at least two prior felony convictions of either a
crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1(a).
In Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219
(1998), the Supreme Court held that a defendant’s prior convictions used to
enhance a sentence are not to be treated as an element of the offense for
constitutional purposes, and as a result, the prior conviction is not required to be
alleged in the indictment. Id., 523 U.S. at 226-27, 118 S. Ct. at 1222. We have
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held that, “unless and until the Supreme Court specifically overrules Almendarez-
Torres,” we will continue to follow it. United States v. Greer, 440 F.3d 1267, 1273
(11th Cir. 2006).
We have noted that, while recent decisions may arguably cast doubt on the
future prospects of Almendarez-Torres, the case is still controlling precedent as the
Supreme Court has not explicitly overruled it. United States v. Camacho-Ibarquen,
410 F.3d 1307, 1316 n.3 (11th Cir. 2005) (per curiam). As the Supreme Court has
stated, its “decisions remain binding precedent until [it] see[s] fit to reconsider
them, regardless of whether subsequent cases have raised doubts about their
continuing vitality.” Hohn v. United States, 524 U.S. 236, 252-53, 188 S. Ct.
1969, 1978 (1998). We have held that the Supreme Court’s decision in
Almendarez-Torres “was left undisturbed by Apprendi, Blakely, and Booker.1”
United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005). Likewise, Jones v.
United States, 526 U.S. 227, 249, 119 S. Ct. 1215, 1227 (1999) did not overrule
Almendarez-Torres. See United States v. Orduno-Mireles, 405 F.3d 960, 962
(11th Cir. 2005) (stating that “[t]he reason for the exception for prior convictions is
clear: ‘a prior conviction must itself have been established through procedures
satisfying the fair notice, reasonable doubt, and jury trial guarantees.’”) (quoting
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United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).
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Jones, 526 U.S. at 249, 119 S. Ct. at 1227). We have noted that “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.” Orduno-
Mireles, 405 F.3d at 962.
Upon review of the record and the parties’ briefs, we discern no reversible
error. Because Supreme Court and our own precedent hold that prior convictions
need not be charged in the indictment or proved to a jury, Tippins’s argument to
the contrary fails.
AFFIRMED.
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