                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   June 23, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                    TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                      No. 08-6247
                                                         (W.D. Okla.)
 RODNEY ANTONIO ALEXANDER,                         (D.C. No. CR-08-109-M)

          Defendant - Appellant.




                                  ORDER & JUDGMENT *


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.


      Defendant-Appellant Rodney Antonio Alexander pleaded guilty to

possession with intent to distribute methamphetamine in violation of 21 U.S.C. §

841(a)(1) and being a felon in possession of a firearm in violation of 18 U.S.C. §

922(g)(1). He was sentenced to 211 months’ imprisonment. Mr. Alexander



      *
              This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1. After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
challenges the district court’s enhancement of his sentence under the Armed

Career Criminal Act (ACCA), 18 U.S.C.§ 924(e), contending the enhancement

violated his Sixth Amendment rights. Exercising jurisdiction under 28 U.S.C. §

1291, we AFFIRM.

      Under 18 U.S.C. § 924(e)(1), a sentencing court is required to impose a

sentence of not less than fifteen years upon a defendant who is convicted under 18

U.S.C. § 922(g)—the felon in possession of a firearm statute—and “has three

previous 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). The

district court concluded that the ACCA applied to Mr. Alexander after finding

that Mr. Alexander was previously convicted of three serious drug offenses

committed on “occasions different from another.” Id.

      Mr. Alexander first contends that the district court erred under the Sixth

Amendment by using uncharged prior convictions that he did not admit to the

existence of in his plea agreement to enhance his sentence. However, as Mr.

Alexander notes, the Supreme Court held in Almendarez-Torres v. United States,

523 U.S. 224 (1998), that prior convictions are sentencing factors rather than

elements of the offense and, therefore, need not be charged in the indictment. Id.

at 226-27. And, as made clear by subsequent Supreme Court precedent

addressing Almendarez-Torres, a further significant consequence is that such

convictions can form the basis for an enhanced sentence, even without a jury


                                         -2-
finding or defendant admission regarding them. See Apprendi v. New Jersey, 530

U.S. 466, 489-90 (2000). In the Sixth Amendment context, we have expressly

recognized the “exception” for prior convictions carved out by the Supreme

Court. United States v. Moore, 401 F.2d 1220, 1224 (10th Cir. 2005). As Mr.

Alexander candidly acknowledges we are “bound to follow” this precedent here.

Aplt. Br. at 8. Accordingly, we reject this challenge to the use of uncharged prior

convictions to enhance his sentence. 1

      Mr. Alexander next claims that pursuant to Apprendi whether his prior

convictions were committed “on occasions different from another,” 18 U.S.C. §

924(e)(1), is a factual question that should have been determined by the jury, not

by the sentencing court. However, Mr. Alexander concedes that binding

precedent of this Court forecloses relief on this claim. He only raises this claim

to preserve his ability to pursue it in the Supreme Court. Indeed, as we have

previously held in United States v. Michel, 446 F.3d 1122 (10th Cir. 2006),

“whether prior convictions happened on different occasions from one another is

not a fact required to be determined by a jury but is instead a matter for the

sentencing court.” Id. at 1133. We are bound by our clear precedent.



      1
             Mr. Alexander frankly acknowledges that his trial counsel
“equivocated in his request for a ruling” on this Sixth Amendment issue, which
questions the continuing viability of the Almendarez-Torres exception;
consequently, he suggests that counsel “arguably waiv[ed] the issue.” Aplt. Br. at
6 n.4. We need not opine on the possible waiver implications of trial counsel’s
conduct. Mr. Alexander’s challenge fails on the merits.

                                         -3-
                         CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment.




                              ENTERED FOR THE COURT



                              Jerome A. Holmes
                              Circuit Judge




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