                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________                   FILED
                                                            U.S. COURT OF APPEALS
                                 No. 10-10705                 ELEVENTH CIRCUIT
                             Non-Argument Calendar               AUGUST 16, 2010
                           ________________________                JOHN LEY
                                                                    CLERK
                   D.C. Docket No. 1:08-cr-00151-WSD-AJB-1

USA,

                                                                 Plaintiff - Appellee,

                                       versus

QUENTARVIOUS CHANEY,

                                                            Defendant - Appellant.

                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         ________________________

                                 (August 16, 2010)

Before BARKETT, HULL and WILSON, Circuit Judges.

PER CURIAM:

       Quentarvious Chaney appeals his 180-month sentence imposed for being a

felon in possession of a firearm. On appeal, Chaney first argues that the district
court erred in finding that his prior state court convictions were predicate offenses

under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).

Specifically, Chaney argues that his prior convictions were constitutionally invalid

and should not count as predicate offenses because his guilty pleas were not

knowing and intelligent and his counsel was ineffective. Chaney further argues

that he presented evidence showing that his conduct in one of his prior burglary

convictions did not meet the elements required under Georgia’s burglary statute,

O.C.G.A. § 16-7-1(a).

      Second, Chaney argues that his statutory mandatory minimum sentence,

which is below the applicable guideline range, is substantively unreasonable and

violates the Supreme Court’s holding in United States v. Booker, 543 U.S. 220,

125 S. Ct. 738 (2005). Third, Chaney argues that the district court committed

constitutional errors in sentencing him. Specifically, Chaney contends that the

district court violated the Sixth Amendment by not requiring his prior convictions

to be found by a jury, and that his mandatory minimum sentence violates the

separation-of-powers doctrine and the Eighth Amendment.

      Upon review of the record, and consideration of the parties’ briefs, we

affirm.

                                     I. ACCA

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      “We review de novo the district court’s application and interpretation of the

sentencing guidelines.” United States v. Wilks, 464 F.3d 1240, 1242 (11th Cir.

2006) (citation omitted). We also review de novo the district court’s interpretation

of statutes involving sentencing issues. United States v. Walker, 228 F.3d 1276,

1277 (11th Cir. 2000) (per curiam).

      Federal law prohibits a previously convicted felon from possessing a

firearm. 18 U.S.C. § 922(g)(1). The ACCA imposes a 15-year mandatory

minimum sentence on an offender who has three prior convictions “for a violent

felony or a serious drug offense.” Id. § 924(e)(1). The ACCA defines a “violent

felony” as:

      any crime punishable by imprisonment for a term exceeding one year
      . . . that (i) has as an element the use, attempted use, or threatened use
      of physical force against the person of another; or (ii) is burglary,
      arson, or extortion, involves use of explosives, or otherwise involves
      conduct that presents a serious potential risk of physical injury to
      another.

Id. § 924(e)(2)(B). The sentencing guidelines contain an armed career criminal

enhancement under which a defendant who is subject to the ACCA’s increased

penalties is given an increased base offense level and criminal history category.

See U.S.S.G. § 4B1.4.

      The Supreme Court has held that the term “burglary,” as used in § 924(e),



                                          3
means burglary in the generic sense, which requires an unlawful entry into “a

building or structure, with intent to commit a crime.” Taylor v. United States, 495

U.S. 575, 599, 110 S. Ct. 2143, 2158 (1990). However, a conviction under a

non-generic burglary statute may be counted for purposes of a § 924(e)

enhancement if the conviction was, in essence, for a generic burglary. Id. at

599–600, 110 S. Ct. at 2158–59. “Georgia’s burglary statute is non-generic

because it encompasses unlawful entry not just into buildings, but also into

vehicles, railroad cars, and watercraft.” United States v. Bennett, 472 F.3d 825,

832 (11th Cir. 2006) (per curiam). We have held that where the district court

correctly determined that a defendant’s previous convictions under Georgia’s

burglary statute constituted generic burglaries, in that the offenses involved the

burglarizing of a building or structure, the burglaries were properly considered

predicate offenses under § 924(e). United States v. Adams, 91 F.3d 114, 115–16

(11th Cir. 1996) (per curiam).

       In determining whether a particular offense qualifies as a predicate offense

for a sentencing enhancement, the Supreme Court has stated that courts must

“look[] only to the statutory definitions of the prior offenses, and not to the

particular facts underlying those convictions.” Taylor, 495 U.S. at 600, 110 S. Ct.

at 2159. The Supreme Court has held that in determining the nature of a prior

                                           4
conviction for ACCA purposes, the trial judge may not look beyond the statutory

elements, charging documents, any plea agreement and colloquy or jury

instructions, or comparable judicial record. Shepard v. United States, 544 U.S. 13,

26, 125 S. Ct. 1254, 1263 (2005). In limited circumstances, the district court may

examine the conduct surrounding a conviction, but only if “ambiguities in the

judgment make the crime of violence determination impossible from the face of

the judgment itself.” United States v. Spell, 44 F.3d 936, 939 (11th Cir. 1995) (per

curiam) (citation omitted).

      In general, a defendant may not collaterally attack, during a federal

sentencing hearing, a prior conviction being used to enhance his sentence under

the ACCA. Custis v. United States, 511 U.S. 485, 497, 114 S. Ct. 1732, 1739

(1994). The lone exception to this rule allows a defendant to challenge a prior

conviction on the basis that it is “presumptively void.” United States v. Roman,

989 F.2d 1117, 1120 (11th Cir. 1993) (per curiam). A conviction is presumptively

void, and thus, cannot be considered in sentencing a defendant, if the defendant

was convicted of a felony without having counsel appointed. See Custis, 511 U.S.

at 495, 114 S. Ct. at 1738. However, the Supreme Court determined “that failure

to appoint counsel for an indigent defendant was a unique constitutional defect,”

and it expressly declined to expand a defendant’s right to collaterally attack prior

                                          5
convictions used for sentence enhancements beyond that situation. Id. at 496, 114

S. Ct. at 1738.

      Here, the district court correctly determined that Chaney’s three prior

convictions of child molestation and sodomy and two burglaries were predicate

offenses under the ACCA. Because Chaney argued before the district court, and

now argues on appeal, that his convictions for burglary should not count as

predicate offenses under the ACCA, he has preserved this argument.

      Therefore, the court properly looked at undisputed statements in the PSI and

the indictments for Chaney’s prior burglary convictions to determine whether the

convictions constituted violent felonies under the ACCA. See United States v.

Greer, 440 F.3d 1267, 1273 (11th Cir. 2006) (noting that the defendant did not

question the accuracy of the district court’s characterization of the indictments at

sentencing or on appeal); United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir.

2005). Because these documents show that Chaney was charged, and

subsequently pled guilty to, breaking into a residence with intent to commit theft,

his convictions under Georgia’s non-generic burglary statute were properly

considered violent felonies because the convictions were, in essence, for generic

burglaries. See Taylor, 495 U.S. at 599–600, 110 S. Ct. at 2158–59; Adams, 91

F.3d at 115–16.

                                          6
      Our Court’s precedent does not allow Chaney to challenge his previous

convictions on the ground that they were unconstitutional based on ineffective

assistance of counsel, or that his plea was not knowing and intelligent. See United

States v. Covington, 565 F.3d 1336, 1345 (11th Cir.), cert denied, 130 S. Ct. 564

(2009). The only recognized ground that Chaney could have challenged his prior

convictions for—that he did not have counsel appointed—is not applicable

because Chaney admitted that he was counseled in his prior state court plea

hearings. See Custis, 511 U.S. at 494–95, 114 S. Ct. at 1738.

      Because the district court correctly determined that Chaney’s prior felony

convictions qualified as violent felonies, thus making him eligible for an enhanced

sentence under the ACCA, the district court did not err in sentencing Chaney.

                   II. Substantive Reasonableness of Sentence

      We review the reasonableness of a sentence under a “deferential

abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41, 128 S. Ct.

586, 591 (2007). “[T]he party who challenges the sentence bears the burden of

establishing that the sentence is unreasonable in the light of both [the] record and

the factors in section 3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th

Cir. 2005) (per curiam).

      “It is well-settled that a district court is not authorized to sentence a

                                           7
defendant below the statutory minimum unless the government filed a substantial

assistance motion pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, or the

defendant falls within the safety-valve of 18 U.S.C. § 3553(f).”1 United States v.

Castaing-Sosa, 530 F.3d 1358, 1360 (11th Cir. 2008) (per curiam). Booker’s

instruction to the district courts to consider the § 3553(a) factors in fashioning a

reasonable sentence cannot be read to authorize the use of those factors to impose

a sentence below an applicable statutory mandatory minimum. Id. Even after the

remedial holding in Booker, the district court remains bound by statutes

designating mandatory minimum sentences. Id. at 1362.

       Chaney’s sentence is not substantively unreasonable, as Chaney has failed

to show that the district court abused its discretion by not sentencing him below

the statutory minimum based on a consideration of the 18 U.S.C. § 3553(a)

sentencing factors. Chaney asserts that his sentence is unreasonable because he

was sentenced for all of his predicate convictions on the same day, was only

seventeen years old at the time, and received the previous sentences as part of a

promised plea deal that he claims was not upheld.

       Chaney relies on the district court’s order in United States v. Brenton-


       1
         Chaney is ineligible for safety-valve relief because he has more than one criminal
history point. See 18 U.S.C. § 3553(f)(1) (requiring the defendant to have no more than one
criminal history point to receive safety-valve relief).

                                               8
Farley, where the district court judge found a sentence to be unreasonable and

ordered a sentence below the statutory minimum. 607 F.3d 1294, 1321–22, 1324

(11th Cir. 2010). However, on appeal, we remanded the case back to the district

court, holding that the statutory mandatory minimum sentence did not violate the

Constitution and instructed the district court to impose a sentence “no less than

that required by § 2241(c).” Id. at 1343, 1346. Our decision in Brenton-Farley

reaffirms the principle that a district court cannot sentence a defendant below a

constitutionally valid statutory mandatory minimum. Id. at 1345.

      Chaney further argues that his mandatory minimum sentence violated the

constitutional prohibition against mandatory sentencing regimes under Booker,

543 U.S. 220, 125 S. Ct. 738, and that mandatory minimum sentences that deprive

the court from exercising its discretion are unconstitutional under Greenlaw v.

United States, 554 U.S. 237, 128 S. Ct. 2559 (2008). We reject these arguments.

      The Supreme Court’s holding in Booker made the sentencing guidelines

advisory, but not all sentencing aspects such as statutory mandatory minimums

enacted by Congress. See Castaing-Sosa, 530 F.3d at 1362. Further, in Greenlaw,

the defendant appealed his sentence that was imposed below the statutory

mandatory minimum, and the Supreme Court noted that even if the district court

makes an error, a court of appeals cannot order an increase to a defendant’s

                                          9
sentence absent a government appeal or cross-appeal. 128 S. Ct. at 2562–63.

       Here, the statutory mandatory minimum for Chaney’s offense was 180-

months’ imprisonment. See 18 U.S.C. § 924(e)(1). The government did not file a

substantial assistance motion or otherwise seek a sentence below the statutory

mandatory minimum. Therefore, the district court correctly concluded that it did

not have the discretion to sentence Chaney below the statutory mandatory

minimum, and Greenlaw is inapplicable. See Castaing-Sosa, 530 F.3d at

1360–61.

      We affirm the district court’s holding that Chaney’s sentence is not

substantively unreasonable and does not violate the constitutional principles set

forth in Booker.

                         III. Constitutionality of Sentence

      We review a defendant’s constitutional challenges to his sentence de novo.

United States v. Lyons, 403 F.3d 1248, 1250 (11th Cir. 2005). Where a defendant

fails to raise constitutional challenges to his sentence before the district court,

however, we review only for plain error. Shelton, 400 F.3d at 1328 (citation

omitted). To show plain error, a defendant must prove, “(1) an error, (2) that is

plain, and (3) that affects substantial rights.” Id. at 1328–29 (citation and

quotation omitted). If all three conditions are met, we may exercise our discretion

                                           10
to recognize the error, if it “seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Id. at 1329 (citation and quotation omitted).

      Here, Chaney argues that his mandatory minimum sentence violated: (1) the

Sixth Amendment right to trial by jury, because the facts of his prior convictions

were not admitted or found by a jury; (2) separation-of-powers principles, because

sentencing should remain primarily a judicial function; and (3) the Eighth

Amendment’s prohibition against cruel and unusual punishments, because he was

sentenced for his predicate offenses almost twenty years ago; he was seventeen at

the time, and Richard Wilson, a passenger in Chaney’s car at the time of this

offense, was later charged with a similar offense under the ACCA but received a

lesser sentence. Because Chaney did not raise these challenges to the district

court, we review each for plain error.

A. The Sixth Amendment

      Chaney’s mandatory minimum sentence did not violate the Sixth

Amendment. “[T]he Constitution gives a criminal defendant the right to demand

that a jury find him guilty of all the elements of the crime with which he is

charged.” Booker, 543 U.S. at 230, 125 S. Ct. at 748 (citation and quotation

omitted). In Almendarez-Torres v. United States, however, the Supreme Court

held that a prior conviction is not a fact that must be alleged in the indictment or

                                            11
found by a jury beyond a reasonable doubt. 523 U.S. 224, 243, 118 S. Ct. 1219,

1231 (1998).2

           Chaney argues that the instant case is distinguishable from Almendarez-

Torres and its progeny because, here, the government included his prior

convictions in the indictment but did not prove them to a jury. However, in Greer,

the government listed the defendant’s previous state court convictions in his

federal indictment charging him with violating 18 U.S.C. §§ 922(g) and 924(e).

440 F.3d at 1272–73. We held that a jury was not required to find that the

defendant’s convictions qualified as predicate offenses under the ACCA. Id.

       Similarly, although the government listed Chaney’s prior state court

convictions in the indictment, a jury was not required to find those convictions to

be predicate offenses. See id. Rather, as discussed infra, the district court

appropriately determined that the convictions qualified as predicate offenses based

on information in the indictments.

B. Separation-of-Powers Doctrine

       Chaney’s sentence did not violate the separation-of-powers doctrine. We

       2
         The Supreme Court’s subsequent seminal decisions in Apprendi v. New Jersey, 530 U.S.
466, 120 S. Ct. 2348 (2000), Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and
Booker, 543 U.S. 220, 125 S. Ct. 738, have not disturbed the holding of Almendarez-Torres.
Shelton, 400 F.3d at 1329; see also United States v. Steed, 548 F.3d 961, 979 (11th Cir. 2008)
(per curiam) (noting that Booker did not overrule Almendarez-Torres and holding that prior
convictions do not have to be pled or proven at trial).

                                             12
recently rejected a claim that a mandatory minimum sentence violates the

separation-of-powers doctrine in United States v. Paige, 604 F.3d 1268, 1274

(11th Cir. 2010) (per curiam) (citation omitted). “It is for Congress to say what

shall be a crime and how that crime shall be punished.” Id. (citation and quotation

omitted). Therefore, Chaney’s argument that the ACCA’s mandatory minimum

penalties violate the separation-of-powers doctrine is foreclosed by Paige, which

is binding precedent. See id.; United States v. Archer, 531 F.3d 1347, 1352 (11th

Cir. 2008) (recognizing that “a prior panel’s holding is binding on all subsequent

panels”).

C. Eighth Amendment

      Chaney’s sentence did not violate the Eighth Amendment’s prohibition

against cruel and unusual punishments. “The Eighth Amendment, which forbids

cruel and unusual punishments, contains a narrow proportionality principle that

applies to noncapital sentences,” Lyons, 403 F.3d at 1256 (quotation omitted), and

“forbids only extreme sentences that are grossly disproportionate to the crime.”

Brenton-Farley, 607 F.3d at 1343 (citation and quotation omitted). We have never

found a term of imprisonment to violate the Eighth Amendment. Id.

      This Court has repeatedly held that sentences under the ACCA are not

grossly disproportionate to the offense for which the sentence was imposed, i.e.,

                                         13
being a felon in possession of a firearm. See United States v. Reynolds, 215 F.3d

1210, 1214 (11th Cir. 2000) (per curiam). Recidivism, as addressed in § 924(e), is

a legitimate basis for increased punishment, given that § 924(e) applies when a

defendant has been convicted of three or more violent felonies or serious drug

offenses. Lyons, 403 F.3d at 1256–57. Moreover, § 924(e) does “not focus on the

motive or purpose of the current possession of firearms, but rather on the fact that

a person with three or more violent felony or serious drug convictions currently

possesses a firearm.” See Reynolds, 215 F.3d at 1214.

        In Reynolds, the defendant pled guilty to violating 18 U.S.C. §§ 922(g)(1)

and 924(e), and was sentenced under the ACCA to 180-months’ imprisonment.

Id. at 1212–13. We held that the 15-year sentence was not grossly

disproportionate to the § 922(g) offense, and that the ACCA did not impose cruel

and unusual punishment. Id. at 1214. Similarly, in Lyons, we held that a

235-month sentence for an armed career criminal convicted for being a felon in

possession of ammunition was not cruel and unusual punishment. 403 F.3d at

1257.

        Here, Chaney was convicted under the same statutes and was sentenced to

the same 180-month term of imprisonment as the defendant in Reynolds. See

Reynolds, 215 F.3d at 1212–13. Moreover, to the extent that Chaney argues that

                                          14
the application of the ACCA based on 20-year-old prior convictions results in an

unconstitutionally disproportionate sentence, he misinterprets the applicable

analysis. Sentences under the ACCA are not grossly disproportionate to the

offense for which this sentence was imposed. See id. Further, because Chaney’s

sentence was not grossly disproportionate to his instant offense, the district court

was not required to compare his sentence to the sentence Richard Wilson received.

See id. at 1214. Thus, Chaney’s mandatory minimum sentence was not

unconstitutional under the Sixth and Eighth Amendments or the separation-of-

powers doctrine.

      For these reasons, we affirm.

      AFFIRMED.




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