                             UNPUBLISHED ORDER
                        Not to be cited per Circuit Rule 53



           United States Court of Appeals
                            For the Seventh Circuit
                            Chicago, Illinois 60604

                            Submitted August 16, 2006*
                             Decided August 17, 2006

                                      Before

                 Hon. THOMAS E. FAIRCHILD, Circuit Judge

                 Hon. RICHARD A. POSNER, Circuit Judge

                 Hon. MICHAEL S. KANNE, Circuit Judge

No. 06-2253

UNITED STATES OF AMERICA,                  Appeal from the United States District
    Plaintiff-Appellee,                    Court for the Southern District of Illinois

      v.                                   No. 05-CR-30160-01-WDS

STEVIE LAMAR BROWN,                        William D. Stiehl,
     Defendant-Appellant.                  Judge.

                                    ORDER

       Stevie Brown was convicted and sentenced to 156 months’ imprisonment
after he pleaded guilty to bank robbery. On appeal he argues that the district court
violated the Sixth Amendment when it sentenced him as a career offender even
though a jury had not found the fact of his underlying convictions beyond a
reasonable doubt. But Brown also acknowledges that this contention is contrary to
our precedent and raises the issue before us merely to preserve it for Supreme
Court review. We affirm.




      *
       Although oral argument was originally granted in this case, the appellant,
with no objection from the government, moved to waive oral argument. Thus the
appeal is submitted on the briefs and the record. See Fed. R. App. P. 34(f).
No. 06-2253                                                                      Page 2

       The facts are undisputed. A grand jury charged Brown with taking by force,
violence, and intimidation approximately $3,097 from the Regions Bank of Cahokia,
Illinois. See 18 U.S.C. § 2113(a). The indictment did not mention any prior
convictions. Brown’s presentence investigation report, however, disclosed two prior
convictions—armed robbery and sale of a controlled substance—that qualified as
“crimes of violence” under U.S.S.G § 41B.2. Based on those convictions, the
probation officer recommended that Brown be sentenced as a career offender, see
U.S.S.G. § 41B.1, which increased the low end of his recommended imprisonment
range under the guidelines from 57 to 151 months. Brown objected that the district
court was not permitted to increase his guidelines range based upon prior
convictions that were not pleaded in the indictment and either admitted by him or
proved to a jury beyond a reasonable doubt. The district court rejected Brown’s
argument, explaining that “the Defendant’s past criminal history need not be
submitted to a jury for a finding beyond a reasonable doubt,” and sentenced him
within the higher guidelines range but well below the statutory maximum.

        On appeal Brown challenges the judicial fact finding that resulted in an
increase to his recommended guidelines imprisonment range. Relying primarily on
Apprendi v. New Jersey, 530 U.S. 466 (2000), Brown argues that any fact that
increases a defendant’s “maximum sentence” must be pleaded in the indictment or
proved to a jury beyond a reasonable doubt. Although he acknowledges that the
fact of a prior conviction is excepted under Almendarez-Torres v. United States, 523
U.S. 224 (1998), he contends nonetheless that, in light of the Supreme Court’s
decisions in Apprendi, United States v. Booker, 543 U.S. 220 (2005), and Shepard v.
United States, 544 U.S. 13 (2005), “the prior conviction exception in
Almendarez-Torres is no longer based on sound principles.” Thus, he says, the
district court was not permitted to increase his guidelines range under U.S.S.G.
§ 41B.1 absent a jury determination that he had the requisite number of prior
felony convictions to be sentenced as a career offender.

       Brown’s reliance on Apprendi and any erosion of the principles expressed in
Almendarez-Torres is misplaced. The restrictions on judicial fact finding
articulated in Apprendi do not foreclose judicial fact finding in the application of the
sentencing guidelines. See United States v. Spence, 450 F.3d 691, 696-97 (7th Cir.
2006); United States v. Bryant, 420 F.3d 652, 656 (7th Cir. 2005). And despite dicta
in subsequent cases concerning the continuing viability of the prior convictions
exception set forth in Almendarez-Torres, the Court restated in Apprendi, and more
recently in Booker, that the exception remains alive and well. Booker, 543 U.S. at
244; Apprendi, 530 U.S. at 490. Sentencing judges may run afoul of the Sixth
Amendment only when they find facts, other than the fact of a prior conviction, that
increase a criminal defendant’s punishment beyond the amount prescribed by
statute for the offense of conviction. Spence, 450 F.3d at 697; Bryant, 420 F.3d at
656. But in this case Brown’s conviction under 18 U.S.C. § 2113(a) carried a
No. 06-2253                                                              Page 3

statutory maximum of 20 years imprisonment, yet he was sentenced to only 13
years.

                                                                    AFFIRMED.
