United States v. McCray, John , 169 F. App'x 997 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 9, 2006*
Decided March 13, 2006
Before
Hon. DANIEL A. MANION, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-4194
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Illinois
v. No. 3:05CR30027
JOHN McCRAY, JR., David R. Herndon,
Defendant-Appellant. Judge.
ORDER
A grand jury charged John McCray, Jr., with conspiring to possess and
distribute heroin and crack cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1);
maintaining a residence for the purpose of distributing heroin and crack in violation
of 21 U.S.C. § 856(a)(1); and four counts of distributing crack or heroin in violation
of 21 U.S.C. § 841(a)(1). McCray pleaded guilty to all seven counts. Before
sentencing the government filed an enhancement information seeking an increase
in the mandatory minimum for McCray’s conspiracy count from 10 to 20 years
based on his prior conviction for conspiracy to distribute heroin. See 21 U.S.C.
§§ 841(b)(1)(A)(iii), 851. Although McCray admitted the prior conviction, he
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-4194 Page 2
objected that its use for enhancement violated his Fifth Amendment right to grand
jury presentment because it was not included in the indictment. After overruling
McCray’s objection, the district court sentenced him to 20 years’ imprisonment on
each count to run concurrently.
On appeal McCray renews his argument that his sentence on the conspiracy
count (and by implication, the remaining counts) violated his Fifth Amendment
right to indictment by grand jury because the prior conviction used to increase the
statutory minimum was not alleged in the indictment. McCray acknowledges,
however, that he raises this issue strictly to preserve it for further review because
he recognizes that current Supreme Court precedent precludes this court from
issuing a decision in his favor. See Harris v. United States, 536 U.S. 545, 568 (2002)
(explaining that it is constitutionally permissible for a sentencing judge to make
findings of fact that lead to imposition of enhanced mandatory minimum sentence);
Almendarez-Torres v. United States, 523 U.S. 224, 239, 243-44 (1998) (holding that
prior convictions need not be charged in indictment or proved to jury beyond a
reasonable doubt). Indeed, the viability of Supreme Court precedent is not for us to
decide. See De Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)
(explaining that circuit courts must follow controlling precedent and leave to
Supreme Court to decide whether to overturn its decisions); United States v.
Browning, – F.3d –, 2006 WL 266508, at *2 (7th Cir. 2006) (stating that
Almendarez-Torres remains binding precedent); United States v. Williams, 410 F.3d
397, 402 (7th Cir. 2005) (noting that Court has yet to overrule Almendarez-Torres).
AFFIRMED.