[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 05-16989                   JULY 18, 2006
                         Non-Argument Calendar            THOMAS K. KAHN
                                                               CLERK
                       ________________________

                   D. C. Docket No. 05-14007-CR-JEM

UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                                  versus

ARMANDO RIVERA, JR.,

                                                    Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                              (July 18, 2006)

Before CARNES, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Armando Rivera, Jr., appeals his 175-month concurrent sentences, imposed

after he pled guilty to two counts of possession of a firearm and two counts of

possession of ammunition by a convicted felon, a violation of 18 U.S.C.

§§ 922(g)(1) and 924(e)(1). On appeal, he argues that the district court violated his

Fifth and Sixth Amendment rights because the prior convictions for violent

felonies that required classifying him as an armed career criminal were neither

charged in the indictment nor proven to a jury and because mandatory minimum

sentences are unconstitutional. For the reasons set forth more fully below, we

affirm.

      A grand jury returned a four-count indictment charging Rivera with four

counts of possession of a firearm or ammunition by a convicted felon in violation

of 18 U.S.C. § 922(g)(1). With respect to counts two through four, the indictment

also charged Rivera under 18 U.S.C. § 924(e), which provides for a mandatory

minimum 15-year sentence for a defendant who is convicted under § 922(g)(1) and

who has three previous convictions for violent felonies or serious drug offenses.

18 U.S.C. § 924(e)(1). The indictment named only one prior conviction for the

state crime of armed bank robbery.

      At Rivera’s plea colloquy, the government informed him that, if he were

found to be a career criminal, he would be subject to a mandatory prison term of at



                                          2
least 15 years. Rivera agreed, and added that, if he were not found to be a career

criminal, his statutory maximum term of imprisonment would be only ten years.

The government indicated that its position was that Rivera was an armed career

criminal, and, therefore, subject to a minimum of 15 years and a maximum of life

imprisonment under 18 U.S.C. § 924(e), which Rivera understood.

      The government then offered the following factual proffer. On November 5,

2004, while under probation supervision, a probation officer, with the assistance of

the Highlands County Sheriff’s office, executed a warrantless search at Rivera’s

residence, which was authorized by the terms of Rivera’s probation. The officers,

while performing their search, noticed a loaded handgun as well as a white powder,

later identified as cocaine powder, in a bedroom. The handgun and eight rounds of

ammunition seized from the gun formed the basis for Counts One and Two. The

officers also observed a .9 millimeter semi-automatic hand gun, concealed inside

two garden-style gloves. The clip of the gun contained 12 rounds. The gun and

rounds formed the basis for Counts Three and Four. Both firearms and all

ammunition was found to have been manufactured outside the state of Florida,

where the crime occurred. Rivera agreed to all of the facts as presented by the

government. The court accepted Rivera’s plea as knowing and voluntary.

      Pursuant to § 4B1.4(a), Rivera was found to be an armed career criminal



                                          3
because he was subject to an enhanced sentence under 18 U.S.C. § 924(e) for

having at least three prior convictions for violent felonies. The PSI named the

following prior convictions: (1) February 7, 1990, for armed burglary, armed

robbery, false imprisonment, and aggravated assault; (2) February 7, 1990, for a

separate count of armed robbery; and (3) June 25, 1993, for armed robbery. The

PSI further noted that the firearms were possessed in connection with the

controlled substance violations of possession of cocaine with intent to sell within

1,000 feet of a school and possession of cannabis with intent to sell within 1,000

feet of a school. Thus, pursuant to U.S.S.G. § 4B1.4(b)(3)(A), Rivera’s offense

level was set at 34. He received a three-level reduction for acceptance of

responsibility, pursuant to U.S.S.G. § 3E1.1(a) and (b), for a total offense level of

31. Based on his armed career criminal status, Rivera was placed in criminal

history category VI, which, at offense level 31, provided for a recommended

sentencing range of 188 to 235 months. The mandatory minimum sentence was 15

years.

         Rivera objected to his classification as an armed career criminal because the

prior convictions that qualified him as an armed career criminal were neither

alleged in the indictment nor admitted by the defendant at his plea, and, therefore,

the district court did not have the constitutional authority to increase the maximum



                                            4
penalty of ten years authorized for a violation of 18 U.S.C. § 922(g)(1).

Additionally, Rivera filed a written objection, acknowledging that “controlling

precedent [was] adverse to his position,” but arguing that, under United States v.

Booker, 

, 

, 

(2005) and Shepard v.

United States, 

, 

, 

(2005), the district

court no longer had the constitutional authority to find that he had three prior

convictions for a violent felony or serious drug offense so as to enhance his

sentence under 18 U.S.C. § 924(e). Rivera argued that such findings were facts

“about a prior conviction,” prohibited by Shepard, if not also by the implicit

overruling of Almendarez-Torres v. United States, 

, 

,

(1998). Moreover, Rivera argued that his case was

distinguishable from cases such as Harris v. United States, 

, 

, 

(2002), because here, the 180-month mandatory minimum

under 18 U.S.C. § 924(e) exceeded the otherwise 120-month maximum sentence

provided for by 18 U.S.C. § 924(a)(2). Accordingly, Rivera requested that he be

sentenced without application of § 924(e)’s mandatory minimum sentence. Rivera

also requested that his sentence be adjusted 13 months to reflect time served due to

an undischarged term of imprisonment as of November 5, 2004.

      At sentencing, the district court overruled Rivera’s objection to being



                                           5
classified as an armed career criminal, finding that “the law is settled that you can,

in fact, be sentenced as an armed career criminal without it being charged in the

indictment.” After considering the PSI, the advisory guidelines, and the factors set

forth at 18 U.S.C. § 3553(a), the court found that a sentence at the bottom of the

advisory guideline range was appropriate, and, therefore, sentenced Rivera to 188

months’ imprisonment. However, the court granted Rivera’s request for credit as

to time served, and, pursuant to U.S.S.G. § 5G1.3(b), adjusted the sentence for the

13 months Rivera had already served for conduct relevant to the instant offense.

Thus, the court’s ultimate sentence was a net of 175 months’ imprisonment on each

count to run concurrently.

      On appeal, Rivera argues that, in light of Apprendi v. New Jersey, 

, 

, 

(2000), Blakely v. Washington, 

, 

, 

(2004), and United States v. Booker, 

, 

, 

(2005), the district court violated his

Sixth Amendment right to a jury and Fifth Amendment right to an indictment when

it enhanced his sentence above the statutory maximum for a § 922(g)(1) offense on

the basis of prior convictions which were not charged, admitted, or found in a jury

verdict. Rivera further argues that, while the fact of a prior conviction is excepted

from the rule in Apprendi, a majority of the Supreme Court now disagrees with the



                                           6
logic of that exception. Moreover, Rivera argues that Shepard prevents judges

from finding facts “about” a prior conviction, which, he argues, means that the

court in this case could not constitutionally find that he had three prior convictions

“for a violent felony or serious drug offense or both” because these are facts

“about” a prior conviction. Rivera argues that Almendarez-Torres is now a

gravely wounded precedent, and, therefore, it should not control this issue. Next,

Rivera argues that, because the 180-month mandatory minimum of § 924(e)

exceeds the 10-year maximum otherwise applicable under § 924(a)(2), it violates

Apprendi and is not controlled by 

. Rivera further argues that Booker

has cast doubt on the validity of mandatory minimum sentences based on judicial

findings of prior convictions. While Rivera notes that this Court has upheld

mandatory minimum sentences under the Armed Career Criminal Act, he

distinguishes his case because here, the prior convictions were not alleged in the

indictment. Thus, he requests that he be sentenced as a felon in possession of

firearms and ammunition under § 922(g) without the armed career criminal

enhancement.

      Where a defendant makes a constitutional challenge to his sentencing

enhancements,we conduct a de novo review and will also review for harmless

error. United States v. Paz, 

, 948 (11th Cir. 2005). We have held that



                                           7
there are two possible Booker errors, the first being the constitutional error of

extra-verdict sentence enhancements, and the second being the statutory error of

applying the guidelines in a mandatory fashion. United States v. Mathenia, 

, 1291 (11th Cir. 2005). Only the constitutional error is at issue here,

and, therefore, to the extent that there was any error, the burden is on the

government to show, beyond a reasonable doubt, that the error did not contribute to

the defendant’s sentence. 

the Supreme Court held that, “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” 

, 120 S.Ct. at 2362-63. In Booker, the Supreme

Court, evaluating the constitutionality of the Federal Sentencing Guidelines, held

that the mandatory nature of the Federal Guidelines rendered them incompatible

with the Sixth Amendment’s guarantee of a right to a jury trial. Booker, 543 U.S.

at 232-35,125 S.Ct. at 749-51. In so doing, the Court affirmed its holding in

Apprendi: “Any 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 reasonable doubt.” Booker, 543 U.S at 

.



                                           8
      Post-Apprendi, we relied on Almendarez-Torres, to hold that a defendant’s

Fifth and Sixth Amendment rights did not include having the three predicate

felonies to trigger the statutory, mandatory minimum 15-year sentence under

ACCA charged in an indictment or proven to a jury. United States v. Thomas, 

, 1034-35 (11th Cir. 2001). Post-Booker, we have held that nothing in

Booker disturbed the Supreme Court’s holdings in Almendarez-Torres or

Apprendi, and that a district court, therefore, does not err by relying on prior

convictions to enhance a defendant’s sentence. See United States v. Gibson, 

, 1246-47 (11th Cir. 2005); United States v. Orduno-Mireles, 

, 962-63 (11th Cir.), cert. denied, 

(2005); see also United States

v. Gallegos-Aguero, 

, 1276-77 (11th Cir. 2005); United States v.

Camacho-Ibarquen, 

, 1315-16 (11th Cir.), cert. denied, 

(2005). While Rivera hints that the Supreme Court’s recent decision in

Shepard casts doubt on the continuing validity of Almendarez-Torres as precedent,

this Court has held that until the Supreme Court explicitly overrules it,

Almendarez-Torres will continue to be followed. 

(“Though wounded, Almendarez-Torres still marches on and we are ordered to

follow.”); 

n.3 (noting that, while the

Supreme Court’s decision in Shepard might cast doubt on the future of



                                           9
Almendarez-Torres, it remains precedent). Recently, we held that the government

did not have to allege prior convictions in an indictment or prove those prior

convictions beyond a reasonable doubt to a jury in order to support a § 924(e) 15-

year mandatory minimum sentence, and that the determination of whether the prior

convictions qualified was a question for the district court, not the jury. United

States v. Greer, 

, 1273-75 (11th Cir. 2006). In any event, the factual

findings made by the district court could not have triggered any constitutional error

because the district court was not bound by the guidelines, only by the statutory

minimum. See United States v. Chau, 

, 1323 (11th Cir. 2005).

      Moreover, Rivera never objected to either the fact of his prior convictions or

to their characterization as violent felonies, and, therefore, those convictions are

deemed admitted. United States v. Shelton, 

, 1330 (11th Cir. 2005)

(holding that, where the defendant did not challenge the relevant facts in the PSI,

those facts were deemed admitted, and no constitutional error occurred under

Booker). Rivera previously was convicted of three armed robberies in Florida, and

we have held that, under Florida law, robbery qualifies as a violent felony under 18

U.S.C. § 924(e)(2)(B)(ii). (PSI ¶ 22); United States v. Wilkerson, 

,

1325 (11th Cir. 2002). Thus, even if prior convictions were not excluded from the

Booker rule, we conclude that the district court did not commit any error by relying



                                           10
on the facts in the PSI to support the armed career criminal enhancement.

       Furthermore, to the extent Rivera is arguing that Shepard applies, we

conclude that there was no error. In Shepard, the Supreme Court addressed only

the manner in which district courts find that a prior conviction qualifies as a violent

felony under the ACCA, holding that a district court’s inquiry to determine

whether a plea of guilty to a non-generic statute necessarily admitted elements of

the generic offense is limited “to the terms of the charging document, the terms of

a plea agreement or transcript of colloquy between judge and defendant in which

the factual basis for the plea was confirmed by the defendant, or to some

comparable judicial record of this information.” 

, 

, 1263.

       Here, Rivera has not argued that the district court relied on an improper

document as proof of the prior convictions, nor did he challenge the

characterization of his prior convictions as “violent felonies.” Therefore, nothing

in Shepard applies, and, in any event, we have held that a district court is permitted

to consider the nature of a prior conviction. 

, quoting

(“the district court’s analysis of prior convictions includes

considering the ‘nature of prior convictions, without submitting those issues to the

jury.’”).



                                          11
      Furthermore, to the extent Rivera is challenging the use of a mandatory

minimum sentence in light of Booker, nothing in Booker eliminated or declared

unconstitutional mandatory minimum sentences as provided for by Congress.

Post-Apprendi, the Supreme Court upheld the constitutionality of mandatory

minimum sentences. 

, 122 S.Ct. at 2420 (holding that 18

U.S.C. § 924(c)(1)(A)(ii)’s seven-year minimum sentence for brandishing a

firearm is constitutional). The Supreme Court in Booker made no mention of

Harris, nor has it overruled it since.

      Accordingly, we are obliged to continue following Harris, and, for that

matter, Almendarez-Torres as precedent. As we have stated:

      It is not given to us to overrule the decisions of the Supreme Court.
      We have stated repeatedly, and with respect to the very issue
      presented in this appeal, that ‘we are not at liberty to disregard
      binding case law that is so closely on point and has been only
      weakened, rather than directly overruled, by the Supreme Court.’
      This is so even if we are convinced that the Supreme Court will
      overturn its previous decision the next time it addresses the issue.

United States v. Gibson, 

, 1246-47 (11th Cir. 2006) (holding that,

while wounded, the Supreme Court’s decision in Almendarez-Torres remains

binding precedent) (citations omitted). Thus, unless and until the Supreme Court

holds that mandatory minimum sentences violate the Constitution, Rivera’s

argument lacks merit. See also United States v. Shelton, 

, 1333 n.10



                                         12
(11th Cir. 2005) (“[w]e emphasize that the district court was, and still is, bound by

the statutory minimums.”).

      Lastly, to the extent that Rivera argues that the prior convictions were

required to be alleged in the indictment, neither Apprendi, Blakely, nor Booker

implicated the Fifth Amendment, and, in any event, prior convictions were

explicitly excluded from the rule that extra-verdict findings are unconstitutional if

they are binding and mandatory. Booker, 543 U.S at 

.

Moreover, we recently rejected the notion that a defendant has a Fifth Amendment

right to have prior convictions that trigger a Guidelines enhancement found by a

grand jury and charged in his indictment because the problem with extra-verdict

enhancements is their use in a mandatory guidelines system, which is no longer an

issue in this case because the district court was not bound by the guidelines. United

States v. Thomas, 

, 1355 (11th Cir. 2006); cf. 

(rejecting the argument that three prior convictions for purpose of

imposing 15-year statutory minimum had to be charged in an indictment and

reflected in the jury’s verdict); see also 

(“Fifth and Sixth

Amendment concerns expressed in Apprendi, Blakely and Booker are not

implicated when a defendant’s sentence is enhanced based on his prior convictions.

. . . As far as his prior convictions are concerned, [the defendant] had no Fifth or



                                          13
Sixth Amendment rights to waive.”).

      Based on the foregoing, we conclude that the district court committed no

constitutional error by sentencing Rivera as an armed career criminal. We,

therefore, affirm.

      AFFIRMED.




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