                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        June 14, 2006
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court


    U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
    v.                                                    No. 05-6280
    W ILLIA M M IC HA EL C AIN ,                    (D.C. No. CR-05-09-M )
                                                       (W .D. Oklahoma)
          Defendant-Appellant.




                                OR D ER AND JUDGM ENT *


Before H ENRY, BRISCO E, and O’BRIEN, Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is,

therefore, ordered submitted without oral argument.

         Defendant W illiam M ichael Cain pled guilty to a charge of possession of a

firearm after a former felony conviction, in violation of 18 U.S.C. § 922(g). The



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
district court sentenced Cain to 180 months’ imprisonment after determining that

his prior convictions supported an Armed Career Criminal Act (ACCA)

enhancement under 18 U.S.C. § 924(e). On appeal, Cain argues that the district

court’s enhancement of his sentence under the ACCA violated his Fifth and Sixth

Amendment rights. W e exercise jurisdiction pursuant to 28 U.S.C. § 1291 and

affirm Cain’s sentence.

                                          I.

      On September 23, 2004, law enforcement officers from the M etro Fugitive

Task Force arrested Cain in M oore, Oklahoma. Cain, who was wanted on an

outstanding nine-count felony warrant, was ordered to get out of the vehicle he

occupied as a passenger. Before Cain got out of the vehicle, officers observed

that he bent down and placed something under his seat. The officers later

recovered a .357 caliber Smith & W esson revolver from the floorboard of the

vehicle where Cain was sitting.

      Cain pled guilty to a one-count indictment charging him with possession of

a firearm after having been previously convicted of a felony. The presentence

report recommended application of an enhanced penalty under the ACCA based

on Cain’s two prior convictions for second degree burglary and one prior

conviction for use of a vehicle to facilitate the discharge of a firearm in conscious

disregard of safety to others. Over Cain’s objection, the district court concluded

that these prior convictions qualified as violent felonies under the ACCA. The

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district court sentenced Cain to the statutory minimum of 180 months’

imprisonment.

                                        II.

      Cain argues that the district court violated the Fifth and Sixth Amendments

when it enhanced his sentence under the ACCA based on his three prior felony

convictions which w ere not charged in the indictment, nor proven to a jury

beyond a reasonable doubt. Cain acknowledges that his argument is foreclosed

under current Supreme Court and Tenth Circuit precedent, and thus, he raises the

issue only to preserve it for possible Supreme Court review.

      This court has held post-Booker 2 that the existence and classification of

prior convictions used to enhance a defendant’s sentence need not be charged in

the indictment and submitted to a jury. See United States v. M oore, 401 F.3d

1220, 1224 (10th Cir. 2005) (“W e are bound by existing precedent to hold that the

Almendarez-Torres 3 exception to the rule announced in Apprendi 4 and extended to

the Guidelines in Booker remains good law . . . . W e therefore conclude that the

government need not charge the ‘fact’ of a prior conviction in an indictment and

submit it to a jury.”); United States v. Small, 423 F.3d 1164, 1188 (10th Cir.

2005) (holding that the district court’s career offender findings under § 4B1.1 did


2
      United States v. Booker, 543 U.S. 220 (2005).
3
      Almendarez-Torres v. United States, 523 U.S. 224 (1998).
4
      Apprendi v. New Jersey, 530 U.S. 466 (2000).

                                        -3-
not implicate the Sixth Amendment, and that “whether the present offense and

prior offense constitute felonies that are crimes of violence or controlled

substance offenses are questions of law unaffected by the Supreme Court’s

holding in Booker”). Accordingly, we reject Cain’s constitutional challenge.

      The sentence imposed by the district court is AFFIRM ED.

                                               Entered for the Court


                                               M ary Beck Briscoe
                                               Circuit Judge




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