                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                             October 7, 2005
                                  TENTH CIRCUIT
                                                                              Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                          No. 05-8016
          v.                                               (D. Wyoming)
 WILLIE JOE JOHNSON,                                  (D.C. No. 04-CR-141-J)

               Defendant-Appellant.




                            ORDER AND JUDGMENT *


Before EBEL, McKAY, and HENRY, Circuit Judges.


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

unanimously that oral argument would not materially assist the determination of

this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Willie Joe Johnson pleaded guilty to a firearm and drug offense in

December 2004. The district court sentenced him as an armed career criminal to



      *
        This order and judgment is not binding precedent, except under the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 10 TH C IR . R. 36.3.
180 months’ imprisonment, taking account of his prior convictions. Mr. Johnson

argues on appeal that (1) the district court should not have made factual findings

about his prior criminal convictions, and (2) his mandatory minimum sentence as

an armed career criminal was unconstitutional. We exercise jurisdiction under 18

U.S.C. § 3742(a) and 28 U.S.C. § 1291. We reject Mr. Johnson’s arguments and

affirm the district court’s sentence.

                                I. BACKGROUND

      On December 3, 2004, Mr. Johnson pleaded guilty to (i) being a previously

convicted felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1),

924(a)(2) and (ii) possession with intent to distribute more than five grams of

cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). The pre-sentence

report (“PSR”), which Mr. Johnson does not challenge, concluded that he had

previous convictions for two violent felonies and a serious drug offense, as

defined by 18 U.S.C. § 924(e). As a result, his PSR indicated that he qualified

for sentencing as an armed career criminal under 18 U.S.C. § 924(e), with a

mandatory minimum sentence of 180 months’ imprisonment. Mr. Johnson

objected to his sentencing as an armed career criminal, citing United States v.

Booker, 125 S. Ct. 738 (2005), and Blakely v. Washington, 124 S. Ct. 2531

(2004). He argued that (1) he did not specifically admit such prior convictions,

and a jury had not found the prior convictions beyond a reasonable doubt; and (2)


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his fifteen-year mandatory minimum sentence was unconstitutional. The district

court overruled his objections and sentenced him to 180 months’ imprisonment.

                                II. DISCUSSION

      “On sentence appeals we review the sentencing court’s . . . legal

conclusions de novo.” United States v. Salazar-Samaniega, 361 F.3d 1271, 1275

(10th Cir. 2004).

A.    Findings regarding prior convictions

      Mr. Johnson first argues that the existence of his prior convictions should

only “be authorized by a jury verdict or a defendant’s admission.” Aplt’s Br. at 6.

He primarily contends that Almendarez-Torres v. United States, 523 U.S. 224

(1997) was wrongly decided, has been eroded by subsequent cases, and should be

overruled. In Almendarez-Torres, the Supreme Court found no constitutional

violation in a federal statute allowing a defendant’s sentence to be increased

based on a fact not charged in the indictment: that the defendant had a prior

aggravated felony conviction. Id. at 226-27.

      We acknowledge that Almendarez-Torres has been called into question.

However, the Supreme Court has not overruled it. In Shepard v. United States,

Justice Thomas noted in a concurring opinion that “Almendarez-Torres . . . has

been eroded by this Court’s subsequent Sixth Amendment jurisprudence, and a

majority of the Court now recognizes that Almendarez-Torres was wrongly


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decided. The parties do not request it here, but in an appropriate case, this Court

should consider Almendarez-Torres’ continuing viability.” 125 S. Ct. 1254, 1264

(2005) (citations omitted). “Although the Court may overrule Almendarez-Torres

at some point in the future, it has not done so, we will not presume to do so for

the Court, and we are bound by existing precedent to hold that the Almendarez-

Torres exception to the rule announced in Apprendi [v. New Jersey, 530 U.S. 466,

490 (2000)] and extended to the Guidelines in Booker remains good law.” United

States v. Moore, 401 F.3d 1220, 1224 (10th Cir. 2005).

      Furthermore, in Booker, the Supreme Court reaffirmed the proposition that

the fact of a prior conviction is an exception to factual jury submissions:

      [W]e reaffirm our 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.

125 S.Ct. at 756 (emphasis added). Thus, the district court did not err when it

relied on prior convictions to sentence Mr. Johnson as an armed career criminal.

B.    Mandatory minimum sentence

      Mr. Johnson next argues that his mandatory minimum sentence of 180

months’ imprisonment is unconstitutional in light of Booker. He contends “that

statutory mandatory minimums are no longer constitutional just as the Guidelines

are no longer mandatory but are only discretionary.” Aplt’s Br. at 34-35. His


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arguments find no support in our case law, as we have recently concluded that

Booker does not affect the validity of a mandatory minimum sentence. See United

States v. Payton, 405 F.3d 1168, 1173 (10th Cir. 2005) (finding no constitutional

or non-constitutional error in sentencing a defendant to a mandatory minimum

sentence); United States v. Williams, 403 F.3d 1188, 1202 (10th Cir. 2005)

(Murphy, J., concurring and dissenting) (concluding that mandatory minimums are

“unaffected” by Booker); see also United States v. Childs, 403 F.3d 970, 972 (8th

Cir. 2005) (noting that Booker is “wholly inapposite” when reviewing mandatory

minimum sentences).

                              III. CONCLUSION

      Accordingly, we AFFIRM the district court’s sentence.



                                      Entered for the Court,



                                      Robert H. Henry,
                                      Circuit Judge




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