                                                                       [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT           FILED
                             ________________________ U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                                                         APRIL 3, 2012
                                     No. 10-15575
                                                                          JOHN LEY
                               ________________________
                                                                           CLERK

                          D. C. Docket No. 9:10-cr-80033-JIC-1


UNITED STATES OF AMERICA,

                                                                            Plaintiff-Appellee,

                                             versus

KURT TIMOTHY FRANKS,

                                                                        Defendant-Appellant.

                               ________________________

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

                                        (April 3, 2012)

Before DUBINA, Chief Judge, ANDERSON and KLEINFELD,* Circuit Judges.

PER CURIAM:

_____________________

*Honorable Andrew J. Kleinfeld, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
       We have had the benefit of oral argument in this case. We have considered

the briefs and those parts of the record that are relevant. We conclude that the

judgment of the district court should be affirmed.

       With respect to Franks’ argument that his prior strong arm convictions do

not qualify as “violent felonies” under 18 U.S.C. §924(e)(2)(B), we affirm. We

note that the only challenge to the status of these prior convictions that Franks

asserted in the district court was an argument that they did not qualify because they

may have involved only the taking of money or other property from the person of

another when in the course of the taking the victim was “put in fear.” Franks has

abandoned that argument on appeal. For the first time on appeal, Franks asserts an

entirely new challenge to the “violent felony” status of his four prior strong arm

robbery convictions. We entertain Franks’ new argument only pursuant to the

plain error analysis.1 For the reasons fully discussed at oral argument, it is clear

that Franks’ suggestion of error is far from obvious. Indeed, we have considerable

doubt that Franks’ new argument enjoys even arguable merit. See Montsdoca v.

State, 93 So. 157, 159 (Fla. 1922). We need not address other issues to conclude



       1
                We have carefully considered Franks’ arguments in supplemental briefing that his
new challenge was fairly presented to the district court. We are not persuaded. The challenge
was not even “obscurely hinted at” during sentencing, and the district court “quite excusably”
failed to grasp it. United States v. Zinn, 32 F.3d 1084, 1087-88 (11th Cir. 2003).

                                                2
that the district court did not err in treating Franks’ four prior strong arm

convictions as “violent felonies” and considering Franks to be an armed career

criminal under §924(e).

      Franks’ other argument, relating to Almendarez-Torres v. United States, 523

U.S. 224, 118 S. Ct. 1219 (1998), is foreclosed by binding precedent, and therefore

clearly does not rise to the level of plain error.

      AFFIRMED.




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