[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-16015 OCT 17, 2008
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 07-00134-CR-T-17EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDUARDO GONZALEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 17, 2008)
Before TJOFLAT, BLACK and CARNES, Circuit Judges.
PER CURIAM:
Eduardo Gonzalez appeals his 188-month sentence for possession of 500 or
more grams of cocaine with the intent to distribute, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(B)(ii). His sole contention is that the district court enhanced his
sentence in violation of the Sixth Amendment because it relied on past convictions
that were neither included in the indictment nor proven to a jury. Specifically,
Gonzalez argues that, under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2346
(2000), any consideration of his prior convictions violates his Sixth Amendment
rights. He also argues that, under Cunningham v. California, 549 U.S. 270, 127
S.Ct. 856 (2007), most judicial fact-finding that increases a sentence based on prior
convictions violates the Sixth Amendment.
The Supreme Court has explicitly held that the government need not allege
in its indictment nor prove beyond a reasonable doubt to a jury that a defendant
had prior convictions in order for a district court to use those convictions to
enhance a sentence. Almendarez-Torres v. United States, 523 U.S. 224, 226-27,
118 S.Ct. 1219, 1222 (1998). Further, in United States v. Shelton, 400 F.3d 1325,
1329 (11th Cir. 2005), we held that the decision in Almendarez-Torres was “left
undisturbed” by the decisions in Apprendi, Blakey v. Washington, 542 U.S. 296,
124 S.Ct. 2531 (2004), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005),
so that “a district court does not err by relying on prior convictions to enhance a
defendant’s sentence.”
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The Supreme Court’s Cunningham decision does not support Gonzalez’s
position. The Court did reiterate there that “the Federal Constitution’s jury-trial
guarantee proscribes a sentencing scheme that allows a judge to impose a sentence
above the statutory maximum based on a fact, other than a prior conviction, not
found by a jury or admitted by the defendant.” Cunningham, 549 U.S. at __, 127
S.Ct. at 860 (emphasis added). The “other than” language preserves the
Almendarez-Torres rule. Moreover, as the Supreme Court has reminded lower
courts, 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).
AFFIRMED.
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