                                                                            F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            March 24, 2006
                                 TENTH CIRCUIT                            Elisabeth A. Shumaker
                                                                              Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                          No. 05-6228
          v.                                              (W.D. of Okla.)
 MAURICE A. BYERS,                                    (D.C. No. CR-05-10-L)

               Defendant-Appellant.


                            ORDER AND JUDGMENT             *




Before TACHA , Chief Judge, HARTZ , and TYMKOVICH , Circuit Judges.               **




      Defendant-Appellant Maurice Byers, appeals the Western District of

Oklahoma’s imposition of a sentence under the Armed Career Criminal Act

(ACCA), claiming that his prior convictions should have been alleged in the

indictment and proved to a jury beyond a reasonable doubt. It is now settled that

this argument is foreclosed by the Supreme Court’s decision in     Almendarez-


      *
         This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         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 cause is therefore ordered submitted without oral argument.
Torres v. United States , 523 U.S. 224 (1998). Accordingly, we AFFIRM the

sentence imposed by the district court.

                                   I. Discussion

       Pursuant to an indictment, Byers was charged with being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g) and being a felon in

possession of body armor in violation of 18 U.S.C. § 931. The maximum

penalties for these offenses were ten and three years in prison, respectively.   1



After Byers pleaded guilty the district court imposed a higher fifteen-year

sentence under the ACCA, 18 U.S.C. § 924(e), finding that Byers had three or

more previous violent or serious drug felony convictions.

       Byers argued at sentencing and maintains before this court that the district

court acted in contravention of the Fifth and Sixth Amendments to the

Constitution when it imposed a sentence in excess of the maximum sentence

available for the crime with which he was charged and to which he pleaded guilty.

In doing so, Byers acknowledges that the Supreme Court has ruled that prior

criminal history, including convictions, that increases the statutory penalty does

not need to be pleaded by the Government in its indictment, nor proven to a jury.

Almendarez-Torres , 523 U.S. at 247. Byers also concedes that we have



       Byers does not appeal the sentence imposed for his possession of body
       1

armor. As such, we refer only to the sentence imposed for his firearm conviction.


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consistently held, on the basis of    Almendarez-Torres , that prior criminal

convictions which enhance a sentence are not elements of the offense which must

be proved to a jury.   United States v. Dorris , 236 F.3d 582, 587 (10th Cir. 2000);

United States v. Moore , 401 F.3d 1220, 1223 (10th Cir. 2005).

       Given these concessions, there is little for us to do. It is true that at least

one justice of the Court has suggested that     Almendarez-Torres is ripe for

reconsideration.   Shepard v. United States , 125 S. Ct. 1254, 1264 (2005)

(Thomas, J., concurring). But any change in the law will have to come from the

Supreme Court, not us. Unless and until the Supreme Court chooses to revisit its

decision in Almendarez-Torres , we are bound by it.

                                     II. Conclusion

       For the foregoing reasons, we AFFIRM the district court.

                                                        Entered for the Court

                                                        Timothy M. Tymkovich
                                                        Circuit Judge




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