UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 07-4892



UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.


JAMES WILLIAM GASTON,

                  Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:06-cr-00087-RJC)


Submitted:     July 31, 2008                 Decided:   August 4, 2008


Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David G. Belser, BELSER & PARKE, Asheville, North Carolina, for
Appellant.    Gretchen C.F. Shappert, United States Attorney,
Charlotte, North Carolina; Amy E. Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           James William Gaston was convicted, following a jury

trial, of conspiracy to possess with intent to distribute cocaine

and   cocaine   base,   three   counts     of   possession    with   intent   to

distribute cocaine base, and possession of a firearm by a convicted

felon.   Based on his prior convictions for either violent or drug

trafficking felonies, as noticed by the 21 U.S.C. § 851 (2000)

information filed by the government, Gaston was found to be an

armed career criminal.     The district court imposed a life sentence

as mandated by 21 U.S.C. §§ 841(b)(1)(A), 851 (2000).                    Gaston

appeals his sentence, arguing that his constitutional rights were

violated because his sentence was increased based on a prior

conviction not alleged in the indictment, found by the jury, or

stipulated to by him.      We affirm.

           Gaston   concedes      that    the   Supreme   Court      ruled,   in

Almendarez-Torres v. United States, 

(1998), that the

penalty provision of a statute enhancing a sentence based on

recidivism is not an element of the crime and prior convictions

need not be alleged in the indictment and found by the jury.

However,   he   contends   that    Almendarez-Torres         was   called   into

question by the Supreme Court’s opinion in Apprendi v. New Jersey,

(2000), and its progeny and should no longer be

considered binding precedent.            Although Apprendi expressed some

uncertainty regarding the future vitality of Almendarez-Torres, we


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subsequently concluded that Almendarez-Torres was not overruled by

Apprendi, and remains the law. United States v. Sterling, 

, 220 (4th Cir. 2002); see also United States v. Cheek, 

, 352-53 (4th Cir. 2005) (reaffirming continuing validity of

Almendarez-Torres after United States v. Booker, 

(2005)).   We therefore conclude that Gaston’s claim is without

merit.   Moreover, as this court noted in Cheek, even if we were to

agree with Gaston’s forecast that the Supreme Court will overrule

Almendarez-Torres, “we are not free to overrule or ignore the

Supreme Court’s precedents.”       

(citing

State Oil Co. v. Khan, 

, 20 (1997) (“[I]t is [the

Supreme]   Court’s   prerogative    alone   to   overrule   one   of   its

precedents.”)).

           Accordingly, we affirm Gaston’s sentence.        We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

                                                                  AFFIRMED




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