United States v. Lashawn Lorenza Anderson

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-14124 ELEVENTH CIRCUIT
Non-Argument Calendar MARCH 30, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 9:10-cr-80049-KAM-1
UNITED STATES OF AMERICA,
lllllllllllllllllllllllllllllllllllllll lPlaintiff-Appellee,
versus
LASHAWN LORENZA ANDERSON,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 30, 2011)
Before BARKETT, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Lashawn Lorenza Anderson appeals his sentence for being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). On
appeal, Anderson contends that the district court violated his Fifth and Sixth
Amendment rights by sentencing him to an enhanced term of imprisonment as an
armed career criminal based on prior convictions that were not alleged in the
indictment. He asserts that Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254,
161 L.Ed.2d 205 (2005) prohibits a district court from making factual findings
concerning the nature of a defendant’s prior convictions. Anderson concedes,
however, that his argument is foreclosed by precedent. For the reasons stated
below, we affirm.
We review constitutional issues de novo. United States v. Steed, 548 F.3d
961, 978 (11th Cir. 2008). In Almendarez-Torres, the Supreme Court explained
that a prior conviction used to enhance a sentence is not an element of the offense,
and, therefore, it need not be alleged in the indictment or found by a jury beyond a
reasonable doubt. Almendarez-Torres, 523 U.S. at 226-27, 118 S.Ct. at 1222.
Although Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435(2000) and subsequent cases have cast doubt on the reasoning of
Almendarez-Torres, we have explained that we will continue to follow
Almendarez-Torres unless and until that case is expressly overruled by the
Supreme Court. See, e.g.. United States v. Greer, 440 F.3d 1267, 1273-76 (11th
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Cir. 2006); Steed, 548 F.3d at 978-80; United States v. Camacho-Ibarquen, 410
F.3d 1307, 1316 n.3 (11th Cir. 2005).
The Supreme Court’s decision in Shepard holds that, in determining
whether a prior conviction is a predicate felony for purposes of the Armed Career
Criminal Act, the district court may only consider the statute of conviction,
charging documents, any plea agreement or jury instructions, or similar judicial
records. Shepard, 544 U.S. at 26, 125 S.Ct. at 1263. In Greer, we observed that
Shepard did not bar district courts from determining whether a defendant’s prior
convictions are serious drug crimes or crimes of violence. Greer, 440 F.3d at
1275. Instead, Shepard merely “restricts the sources or evidence that a judge
(instead of a jury) can consider in making that finding.” Id. Thus, the holding in
Shepard did not affect the continuing validity of Almendarez-Torres.
In this case, the district court did not violate Anderson’s constitutional
rights by sentencing him as an armed career criminal. Because Anderson’s prior
convictions were not elements of his offense, they did not have to be charged in
the indictment. See Almendarez-Torres, 523 U.S. at 226-27, 118 S.Ct. at 1222.
Anderson correctly concedes that Almendarez-Torres remains the law of this
Circuit until that case is expressly overruled by the Supreme Court. See Greer,
440 F.3d at 1273-76; Steed, 548 F.3d at 978-80; Camacho-Ibarquen, 410 F.3d at
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1316 n.3. Moreover, we have explained that Shepard does not prohibit a district
court from making factual findings about the nature of a defendant’s prior
convictions. See Greer, 440 F.3d at 1275. Accordingly, after review of the record
and the parties’ briefs, we affirm Anderson’s sentence.
AFFIRMED.
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