                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             OCTOBER 31, 2006
                               No. 05-17160                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                    D. C. Docket No. 05-80021-CR-DTKH

UNITED STATES OF AMERICA,


                                                   Plaintiff-Appellee,

                                    versus

DAVID AUSTIN, JR.,

                                                   Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                              (October 31, 2006)

Before BLACK, HULL and MARCUS, Circuit Judges.

PER CURIAM:

     After pleading guilty, David Austin appeals his 180-month sentence for
being a felon in possession of ammunition, in violation of 18 U.S.C. §§ 922(g)(1)

and 924(e). After review, we affirm.

                                I. BACKGROUND

      A federal grand jury charged Austin with knowingly possessing ammunition

after having been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and

924(e). Austin pled guilty to the charge pursuant to a written plea agreement.

      The presentence investigation report (“PSI”) recommended that Austin be

classified an armed career criminal pursuant to U.S.S.G. § 4B1.4 based on Austin’s

criminal record. The PSI listed six qualifying prior felony convictions, including

aggravated battery, aggravated assault, sale of a substance in lieu of cocaine and

three carrying-a-concealed-weapon convictions. The criminal history portion of

the PSI contained more detailed information about each of the six convictions,

including the underlying circumstances of the offenses. With a criminal history

category of VI and a total offense level of 30, the PSI initially calculated an

advisory guidelines range of 168 to 210 months’ imprisonment. However, because

Austin was subject to a statutory minimum sentence of 15 years, the PSI

recommended a guidelines range of 180 to 210 months.

      Prior to and during sentencing, Austin did not dispute the existence of these

six prior felony convictions. Indeed, Austin has never denied that he has prior



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convictions for aggravated battery, aggravated assault, and sale of a substance in

lieu of cocaine and three convictions for carrying a concealed weapon. Nor did he

dispute the factual accuracy of the PSI. Rather, Austin objected to his

classification as a career offender because his prior felony convictions had not been

alleged in his indictment or admitted in his guilty plea. The district court overruled

Austin’s objection. The district court found that Austin had the requisite prior

convictions for purposes of being an armed career criminal and imposed an 180-

month sentence, which represents Austin’s mandatory minimum sentence of 15

years. Austin appealed.

                                         II. DISCUSSION

        Austin argues that the district court violated his Fifth and Sixth Amendment

rights when it sentenced him as an armed career criminal pursuant to 18 U.S.C.

§ 924(e) and U.S.S.G. § 4B1.4(b)(3)(B).1 Under § 924(e), a defendant who

violates § 922(g) is subject to a mandatory minimum sentence of fifteen years’

imprisonment and a maximum sentence of life imprisonment if the defendant has

three prior convictions for “a violent felony or a serious drug offense, or both,

committed on occasions different from one another . . . .” 18 U.S.C. § 924(e)(1);

United States v. Brame, 997 F.2d 1426, 1428 (11th Cir. 1993). Additionally, under


        1
        We review de novo objections to the constitutionality of a sentence and will reverse only if we find
harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).

                                                     3
U.S.S.G. § 4B1.4, a defendant’s base offense level is increased for purposes of

calculating his advisory guidelines range if he is subject to an enhanced sentence

under 18 U.S.C. § 924(e). See U.S.S.G. § 4B1.4(a)-(b).

      As Austin candidly acknowledges, Almendarez-Torres v. United States, 523

U.S. 224, 118 S. Ct. 1219 (1998), permits a sentencing court to enhance a

defendant’s sentence based on prior convictions and, despite speculation about the

future viability of Almendarez-Torres, binds this Court until it is explicitly

overruled by the Supreme Court. See, e.g., United States v. Greer, 440 F.3d 1267,

1274-76 (11th Cir. 2006).

      Austin argues, however, that Almendarez-Torres permits a sentencing court

to find the mere fact of a conviction and that Apprendi v. New Jersey, 530 U.S.

466, 120 S. Ct. 2348 (2000), United States v. Booker, 543 U.S. 220, 125 S. Ct. 738

(2005), and Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254 (2005), bar

judge-made findings about the factual nature of the prior convictions. We have

already rejected this argument. See Greer, 440 F.3d at 1275 (explaining that

Apprendi, Booker and Shepard do not “forbid a judge from determining ‘the

factual nature of a prior conviction,’” but instead “restrict[] the sources or evidence

that a judge (instead of a jury) can consider in making that finding”).

      In any event, in this case, there was no dispute at sentencing that Austin has



                                           4
these six prior felony convictions. See United States v. Wade, 458 F.3d 1273,

1277 (11th Cir. 2006) (explaining that the “failure to object to allegations of fact in

a PSI admits those facts for sentencing purposes”). Furthermore, at least three of

these prior convictions were qualifying convictions on their face and did not

require the district court to go behind the fact of the convictions and examine any

other documentation to determine their nature. In addition to Austin’s convictions

for aggravated battery and aggravated assault, his three convictions for carrying a

concealed weapon qualify as both “violent felonies” within the meaning of §

924(e). See United States v. Hall, 77 F.3d 398, 401 (11th Cir. 1996) (18 U.S.C. §

924(e)).

      The district court did not err by enhancing Austin’s sentence based on his

prior felony convictions. Accordingly, we affirm Austin’s 180-month sentence.

      AFFIRMED.




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