United States v. James Walker , 228 F. App'x 924 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 30, 2007
No. 06-12617 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-80125-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES WALKER,
a.k.a. Keith Taylor,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 30, 2007)
Before BIRCH, BLACK and WILSON, Circuit Judges.
PER CURIAM:
James Walker appeals his sentence imposed after he pled guilty to
knowingly and intentionally distributing crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1). Walker contends the district court erred when it classified him as a
career offender because his prior conviction for battery on a law enforcement
officer is not a crime of violence as defined by U.S.S.G. § 4B1.2(a). Walker
further asserts his prior conviction for battery on a law enforcement officer should
not be used to enhance his sentence since the prior conviction was not proven to a
jury beyond a reasonable doubt nor admitted by him in his plea. The district court
did not err, and we affirm.
I. DISCUSSION
A. Crime of Violence
Walker asserts his prior conviction for battery on a law enforcement officer
does not necessarily involve the use or threat of use of physical force, and,
consequently, the offense cannot be used to classify him as a career offender. He
contends his case is analogous to Shepard v. United States, 125 S. Ct. 1254 (2005),
as battery is defined more broadly in Florida than the definition of a “crime of
violence” under U.S.S.G. § 4B1.2(a). Walker argues that in light of Shepard, the
district court erred by not examining the statutory definition of battery under
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Florida law to determine whether it in fact constitutes a crime of violence under the
Sentencing Guidelines.
We have previously held that battery on a law enforcement officer under
Florida law is a crime of violence. United States v. Glover, 431 F.3d 744, 749
(11th Cir. 2005). In Shepard, the Supreme Court limited the types of evidence a
district court can constitutionally consider to determine whether a prior burglary
conviction qualifies as a violent felony for purposes of the ACCA where the
statutory definition of burglary includes both violent and non-violent conduct.
Shepard, 125 S. Ct. at 1263.
We have directly addressed this issue, and the district court did not err in
finding battery on a law enforcement officer under Florida law is a crime of
violence. Contrary to Walker’s contentions, Shepard does not alter this
conclusion, as it merely limited the types of evidence a district court may consider
in determining the nature of a prior conviction. Unlike in Shepard, the district
court in this case had to look no further than the fact of conviction to determine
Walker was a career offender. Further, to the extent Walker argues we should
overrule our prior decision, this argument is without merit. See Swann v. Southern
Health Partners, Inc., 388 F.3d 834, 837 (11th Cir. 2004) (“Under the prior panel
rule, [a panel of this Court is] bound by the holdings of earlier panels unless and
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until they clearly overturned en banc or by the Supreme Court.” ). The district
court did not err in finding Walker’s prior conviction qualified as a crime of
violence for purposes of classifying him as a career offender.
B. Enhancement Based on Prior Conviction
Walker also argues his prior conviction for battery on a law enforcement
officer should not be used as a predicate offense for career offender purposes since
the prior conviction was not proven to a jury beyond a reasonable doubt nor
admitted by him in his plea. Walker acknowledges the binding precedent of
Almendarez-Torres v. United States, 118 S. Ct. 1219 (1998), but contends that
Shepard, as recognized by recent decisions of this Court, has cast doubt on the
validity of Almendarez-Torres and has limited the use of prior convictions to
enhance a defendant’s sentence.
In Almendarez-Torres, the Supreme Court held a defendant’s prior
conviction does not have to be alleged in the indictment or submitted to a jury and
proved beyond a reasonable doubt. Almendarez-Torres, 118 S. Ct. 1219, 1222
(1998). We have held nothing in Booker1 disturbed the Supreme Court’s holding
in Almendarez-Torres. See United States v. Gibson, 434 F.3d 1234, 1244-47 (11th
Cir. 2006). Additionally, since Shepard, we have consistently held Almendarez-
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United States v. Booker, 125 S. Ct. 738 (2005).
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Torres remains good law “until the Supreme Court determines that Almendarez-
Torres is not controlling precedent.” United States v. Orduno-Mireles, 405 F.3d
960, 963 (11th Cir.), cert. denied, 126 S. Ct. 233 (2005); see also United States v.
Camacho-Ibarquen, 410 F.3d 1307, 1316 n.3 (11th Cir.), cert. denied, 126 S. Ct.
457 (2005) (“Although recent decisions, including Shepard . . . , 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.”). Further, we have held that after
Shepard, district courts may determine both the existence and nature of a
conviction, as “[t]here is implicit in the Shepard rule . . . a recognition that if the
nature of the prior conviction can be determined from [the statutory definition,
charging document, written plea agreement, transcript of plea colloquy, or jury
instructions], under existing law the trial judge may make the determination.”
United States v. Greer, 440 F.3d 1267, 1275 (11th Cir. 2006).
The district court did not err by enhancing Walker’s sentence based on his
prior conviction. We have decided this question previously and expressly held
Almendarez-Torres remains good law. Also, Walker’s contention the finding
regarding his prior conviction for battery on a law enforcement officer violated
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Shepard is without merit. The sentencing judge continues to make this
determination, and is only limited in the evidence he may use to make this finding.
II. CONCLUSION
The district court did not err in determining battery on a law enforcement
officer is a crime of violence or in enhancing Walker’s sentence based on his prior
conviction. Accordingly, we affirm.
AFFIRMED.
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