United States v. Michael A. Turner , 133 F. App'x 631 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
_________________________ May 19, 2005
THOMAS K. KAHN
No. 04-13405 CLERK
Non-Argument Calendar
__________________________
D. C. Docket No. 03-60209-CR-WJZ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL A. TURNER,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Southern District of Florida
__________________________
(May 19, 2005)
Before EDMONDSON, Chief Judge, TJOFLAT and DUBINA, Circuit Judges.
PER CURIUM:
Michael A. Turner appeals his 188-month sentence, pursuant to his guilty
plea, for possession of a firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e). Turner was sentenced as an armed career criminal, under
18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4, based on the district court’s
determination that Turner had three prior violent felony convictions. No
reversible error has been shown; we affirm.
Citing Blakely v. Washington, 124 S.Ct. 2531 (2004), Turner argues that the
§ 4B1.4 armed career criminal enhancement violated his constitutional rights to an
indictment and to a jury determination beyond a reasonable doubt that he had been
convicted of three prior qualifying felonies. Turner contends the district court
thus made an improper fact finding that Turner’s prior convictions satisfied the
definition of a “violent felony” in 18 U.S.C. § 924(e)(2)(B). He also maintains
that a mere reference to 18 U.S.C. § 924(e), in the indictment and at the guilty plea
hearing, was not sufficient to evidence an intelligent waiver of his right to have a
jury determine beyond a reasonable doubt whether his prior convictions qualified
under § 4B1.4.
We review de novo a preserved constitutional challenge to a defendant’s
sentence. United States v. Miles, 290 F.3d 1341, 1348 (11th Cir. 2002). And we
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reject Turner’s argument that a district court errs when it uses prior convictions to
enhance a defendant’s sentence under the Sentencing Guidelines.
In Almendarez-Torres v. United States, 118 S.Ct. 1219 (1988), the Supreme
Court opined “that the 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.”
United States v. Marseille, 377 F.3d 1249, 1257 (11th Cir.), cert. denied, 125
S.Ct. 637 (2004). In the light of Blakely, Turner suggests that Almendarez-Torres
no longer is good law. But recently we have written that the conclusion in
Almendarez-Torres “was left undisturbed by Apprendi [v. New Jersey, 120
S.Ct. 2348 (2000)], Blakely, or [United States v.] Booker, [125 S.Ct. 738 (2005)].”
United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005); see United States
v. Guadamuz-Solis, 232 F.3d 1363, 1363 (11th Cir. 2000) (“Almendarez-Torres
remains the law until the Supreme Court determines that Almendarez-Torres is not
controlling precedent”).
And in Booker, the Supreme Court reaffirmed its decision 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
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reasonable doubt.” Booker, 125 S.Ct. at 756 (emphasis added). Accordingly, the
district court did not err “by relying on prior convictions to enhance [Turner]’s
sentence.” Shelton, 400 F.3d at 1329.
AFFIRMED.
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