                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3564
                                   ___________

United States of America,             *
                                      *
           Plaintiff - Appellee,      *
                                      * Appeal from the United States
     v.                               * District Court for the
                                      * Western District of Missouri.
David McElroy,                        *
                                      * [UNPUBLISHED]
           Defendant - Appellant.     *
                                 ___________

                             Submitted: April 11, 2005
                                Filed: April 18, 2005
                                 ___________

Before MURPHY, BRIGHT, and MELLOY.
                           ___________

PER CURIAM.

       David McElroy pled guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). At sentencing McElroy objected
to the finding of the district court1 that his prior convictions for incest and sodomy
were violent felonies within the meaning of 18 U.S.C. § 924(e), but he did not contest
the fact that he had been convicted of these crimes. He was sentenced to the
mandatory minimum of 180 months provided in § 924(e) because he had three
previous convictions for a violent felony or serious drug offense, and he does not

      1
       The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
contest that his prior convictions for first degree attempted burglary and production
of a controlled substance qualified.

       McElroy argues that the district court erred by finding that his prior state court
convictions for sodomy and incest were violent felonies instead of submitting the
question to a jury to be decided beyond a reasonable doubt, citing Blakely v.
Washington, 124 S. Ct. 2531 (2004). He contends that Blakely and Apprendi v. New
Jersey, 530 U.S. 466 (2000), have undermined the validity of Almendarez-Torres v.
United States, 523 U.S. 224 (1998). The government responds that McElroy does not
contest the fact and validity of his state court convictions and that whether an offense
is a violent felony is a question of law and does not require a jury trial.

       In Almendarez-Torres, the Supreme Court held that a prior felony conviction
is a sentencing factor for the court rather than a fact issue for the jury. That principle
has been reaffirmed most recently in United States v. Booker, 125 S. Ct. 738, 756
(2005). See also Blakely, 124 S. Ct. at 2536; Apprendi, 530 U.S. at 490. The
Supreme Court has not reconsidered its decision in Almendarez-Torres, see Shepard
v. United States, 125 S. Ct. 1254, 1264 (2005) (Thomas, J., concurring), and it
remains binding on this court. We conclude that the district court did not err by
applying the mandatory minimum sentence based on McElroy's prior state
convictions for incest and sodomy.

      We accordingly affirm the judgment of the district court.
                     ______________________________




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