                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT                     FILED
                           ________________________          U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                                                   August 19, 2005
                                 No. 04-15924                    THOMAS K. KAHN
                             Non-Argument Calendar                   CLERK
                           ________________________

                       D. C. Docket No. 04-14015-CR-DLG

UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                       versus

ANDRE JAMAAL WILLIAMS,

                                                               Defendant-Appellant.


                           ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          _________________________
                                 (August 19, 2005)


Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.

PER CURIAM:

      Andre Jamaal Williams appeals from his 120-month sentence imposed after

he pled guilty to possession with intent to distribute five grams or more of cocaine
base, in violation of 21 U.S.C. § 841(a)(1) (Count Two). Because prior

convictions are not a separate element of an offense that the government is

required to prove beyond a reasonable doubt, the district court did not err by

applying 21 U.S.C. § 851 to increase Williams’s sentence based on his admitted

previous drug convictions. Moreover, because Williams was sentenced to the

statutory mandatory minimum sentence rather than under the federal Sentencing

Guidelines, the district court did not err under United States v. Booker, 543 U.S.

__, 125 S. Ct. 738, 160 L.Ed.2d 621 (2005). Accordingly, we AFFIRM.

                                     I. BACKGROUND

       Williams was indicted for possession with intent to distribute five grams or

more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (Count Two). He pled

guilty pursuant to a written plea agreement. The government filed an information

pursuant to 21 U.S.C. § 851, indicating its intention to seek an enhancement to

Williams’s sentence based on his prior convictions for two counts of possession

and sale of cocaine. See Admin. Papers.1 The information stated that the

enhancement provided a mandatory minimum sentence of 10 years of

imprisonment. Williams filed no response to the information. During the plea



       1
         The government filed an unopposed motion to supplement the record with this document,
explaining that it had not been properly docketed in the district court due to a typographical error.
(See Admin. Papers, Motion dated 12 April 2005). The clerk granted this request. Id. at 3.

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colloquy, the magistrate judge informed Williams that, in accordance with

paragraph two of the plea agreement, his sentence would be enhanced based upon

his prior convictions for felony drug offenses. Williams conceded that he had

received notice of the enhancement, and further stated that he understood and did

not object.

      The presentence investigation report (“PSI”) calculated Williams’s total

offense level as 26, pursuant to U.S.S.G. § 2D1.1(a)(3), and his criminal history

category as IV. The PSI noted that he previously was convicted for selling $20

worth of crack cocaine. Based on Williams’s offense level and criminal history

category, the guidelines range was 92 to 115 months of imprisonment. However,

the PSI stated that, under U.S.S.G. § 5G1.1(b), the guideline range was 120 months

of imprisonment based on the statutory minimum sentence. Williams objected to

the denial of a three-level reduction in offense level for acceptance of

responsibility. He also objected to the recommendation that he be sentenced as a

“career offender,” arguing that it would violate his Fifth and Sixth Amendment

rights under Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531, 159 L.Ed.2d

403 (2004). The probation officer noted that the PSI did not recommend that

Williams be sentenced as a career offender, but instead noted that the government

had filed an information pursuant to 21 U.S.C. § 851.



                                           3
       At the sentencing hearing, the district court granted Williams a three-level

reduction for acceptance of responsibility. The district court then denied his

request that he not receive the enhancement to his sentence based on his prior

convictions due to the application of Blakely. The district court sentenced

Williams to the statutory mandatory minimum sentence of 120 months of

imprisonment.

                                      II. DISCUSSION

       On appeal, Williams argues that the district court erred under Apprendi v.

New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely2

by enhancing his sentence based on his prior convictions, which violated his

constitutional rights. He contends that the facts of his prior conviction should have

been charged in the indictment. He concedes that under Almendarez-Torres v.

United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), prior

convictions are excepted from the rule set forth in Apprendi. However, he further

contends that the case is no longer valid.

       We review preserved constitutional errors de novo. United States v. Paz,

405 F.3d 946, 948 (11th Cir. 2005) (per curiam). If a defendant has a prior drug


       2
          Although the Supreme Court extended Blakely to the federal Sentencing Guidelines in
Booker, Williams fails to mention Booker in his arguments on appeal, despite the fact that his brief
was filed two months after the Court decided the case. See Appellant’s Br.; Booker, 543 U.S. __,
125 S. Ct. 738.

                                                 4
conviction, the mandatory minimum sentence for possession with intent to

distribute five grams or more of cocaine base is 120 months of imprisonment. See

21 U.S.C. § 841(b)(1)(B). Under 21 U.S.C. § 851, a defendant denying the

convictions alleged in the information filed by the government should file a written

response. 21 U.S.C. § 851(c)(1). In United States v. Shelton, we noted that the

sentence for a firearm count was not at issue because Shelton was sentenced to the

mandatory statutory minimum. 400 F.3d 1325, 1333 n.10 (11th Cir. 2005).

      As we stated in United States v. Orduno-Mireles, the Supreme Court “left

undisturbed its holding in Almendarez-Torres that recidivism is not a separate

element of an offense that the government is required to prove beyond a reasonable

doubt.” 405 F.3d 960, 962 (11th Cir. 2005) (holding that a sentencing guidelines

enhancement based on a prior conviction was properly applied and did not violate

Booker); see also United States v. Camacho-Ibarquen, No. 04-11155, manuscript

op. at 16-17 (11th Cir. Jun. 2, 2005) (per curiam) (rejecting plain-error Booker

challenge to district court’s application of a sentencing guidelines enhancement

based solely on defendant’s prior convictions, which Almendarez-Torres does not

require to be charged and proved beyond a reasonable doubt). Moreover, we held

that a district court did not err in applying sentencing enhancements based on facts

admitted by the defendant. See Shelton, 400 F.3d at 1330.



                                          5
      The Apprendi/Blakely/Booker line of cases is not applicable to Williams’s

sentence because he received the statutory mandatory minimum of 120 months of

imprisonment, rather than being sentenced under the Guidelines. See 21 U.S.C.

§ 841(b)(1)(B); Shelton, 400 F.3d at 1333 n.10. Moreover, even if

Apprendi/Blakely/Booker were to apply, the district court did not err because (1)

recidivism is not a separate element of an offense; and (2) Williams admitted to his

prior convictions, through his statements at the plea hearing and by failing to

challenge them in the information or in the PSI. See Orduno-Mireles, 405 F.3d

at 962; Shelton, 400 F.3d at 1330.

                                III. CONCLUSION

      Because prior convictions are not a separate element of an offense that the

government is required to prove beyond a reasonable doubt, the district court did

not err by applying 21 U.S.C. § 851 to increase Williams’s sentence, based on his

admitted previous drug convictions. Moreover, because Williams was sentenced to

the statutory mandatory minimum sentence rather than under the federal

Guidelines, the district court did not err under Booker. Accordingly, we AFFIRM.




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