                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                              No. 07-16015                   OCT 17, 2008
                          Non-Argument Calendar            THOMAS K. KAHN
                                                               CLERK
                        ________________________

                  D. C. Docket No. 07-00134-CR-T-17EAJ

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

EDUARDO GONZALEZ,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________
                            (October 17, 2008)


Before TJOFLAT, BLACK and CARNES, Circuit Judges.

PER CURIAM:

     Eduardo Gonzalez appeals his 188-month sentence for possession of 500 or
more grams of cocaine with the intent to distribute, in violation of 21 U.S.C. §§

841(a)(1), (b)(1)(B)(ii). His sole contention is that the district court enhanced his

sentence in violation of the Sixth Amendment because it relied on past convictions

that were neither included in the indictment nor proven to a jury. Specifically,

Gonzalez argues that, under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2346

(2000), any consideration of his prior convictions violates his Sixth Amendment

rights. He also argues that, under Cunningham v. California, 549 U.S. 270, 127

S.Ct. 856 (2007), most judicial fact-finding that increases a sentence based on prior

convictions violates the Sixth Amendment.

      The Supreme Court has explicitly held that the government need not allege

in its indictment nor prove beyond a reasonable doubt to a jury that a defendant

had prior convictions in order for a district court to use those convictions to

enhance a sentence. Almendarez-Torres v. United States, 523 U.S. 224, 226-27,

118 S.Ct. 1219, 1222 (1998). Further, in United States v. Shelton, 400 F.3d 1325,

1329 (11th Cir. 2005), we held that the decision in Almendarez-Torres was “left

undisturbed” by the decisions in Apprendi, Blakey v. Washington, 542 U.S. 296,

124 S.Ct. 2531 (2004), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005),

so that “a district court does not err by relying on prior convictions to enhance a

defendant’s sentence.”



                                            2
      The Supreme Court’s Cunningham decision does not support Gonzalez’s

position. The Court did reiterate there that “the Federal Constitution’s jury-trial

guarantee proscribes a sentencing scheme that allows a judge to impose a sentence

above the statutory maximum based on a fact, other than a prior conviction, not

found by a jury or admitted by the defendant.” Cunningham, 549 U.S. at __, 127

S.Ct. at 860 (emphasis added). The “other than” language preserves the

Almendarez-Torres rule. Moreover, as the Supreme Court has reminded lower

courts, its “decisions remain binding precedent until [it] see[s] fit to reconsider

them, regardless of whether subsequent cases have raised doubts about their

continuing vitality.” Hohn v. United States, 524 U.S. 236, 252-53, 188 S.Ct. 1969,

1978 (1998).

      AFFIRMED.




                                            3
