[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Sept. 21, 2009
No. 08-17098 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-60150-CR-WJZ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDERICK GIBSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 21, 2009)
Before BIRCH, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Frederick Gibson appeals his 188-month sentence, imposed after he pled
guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g). Gibson had 3 prior felony convictions, which enhanced the statutory
mandatory minimum to 15 years’ imprisonment, pursuant to 18 U.S.C. § 924(e)(1).
Gibson argues that his Fifth and Sixth Amendment rights were violated when the
district court applied the enhanced penalty because the prior convictions on which
the enhancement was based were neither alleged in the indictment nor found by a
jury beyond a reasonable doubt.
We review de novo a constitutional challenge to a sentence. United States v.
Cantellano, 430 F.3d 1142, 1144 (11th Cir. 2005). Pursuant to § 924(e)(1), any
person who commits the offense of being a felon in possession of a firearm and has
3 prior convictions for a violent felony or a serious drug offense shall be
imprisoned not less than 15 years. 18 U.S.C. § 924(e)(1).
A district court does not err by relying on prior convictions to enhance a
defendant’s sentence. United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir.
2005). In Almendarez-Torres v. United States, 523 U.S. 224, 244-46, 118 S.Ct.
1219, 1231-32, 140 L.Ed.2d 350 (1998), the Supreme Court held that prior
convictions could be considered and used to enhance a defendant’s sentence
without having been alleged in the indictment or proven beyond a reasonable
doubt. Subsequent decisions, namely Apprendi v. New Jersey, 530 U.S. 466, 120
2
S.Ct. 2348, 147 L.Ed.2d 435 (2000), Blakely v. Washington, 542 U.S. 296, 124
S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. 220,
125 S.Ct. 738, 160 L.Ed.2d 621 (2005), have not disturbed the holding of
Almendarez-Torres. See Shelton, 400 F.3d at 1329. “Although recent decisions,
including Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205
(2005), may arguably cast doubt on the future prospects of Almendarez-Torres’s
holding regarding prior convictions, the Supreme Court has not explicitly
overruled Almendarez-Torres. As a result, we must follow Almendarez-Torres.”
United States v. Camacho-Ibarquen, 410 F.3d 1307, 1316 n.3 (11th Cir. 2005).
Gibson’s argument that his prior felonies must be alleged in the indictment
or found by a jury is contrary to binding precedent. The district court did not err
when it enhanced Gibson’s sentence based on his prior convictions, even though
they were not alleged in the indictment or proven to a jury. Because the decision
in Almendarez-Torres remains good law, the district court did not err, and we
affirm.
AFFIRMED.1
1
Gibson’s request for oral argument is denied.
3