                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                              FILED
                    FOR THE ELEVENTH CIRCUIT
                                               U.S. COURT OF APPEALS
                                                 ELEVENTH CIRCUIT
                   _____________________________ September 13, 2005
                                                  THOMAS K. KAHN
                            No. 04-15458               CLERK
                       Non-Argument Calendar
                   ____________________________

                   D.C. Docket No. 02-00249-CR-CG

UNITED STATES OF AMERICA,

                                              Plaintiff-Appellee,

                                 versus

BERNARD CUNNINGHAM,

                                              Defendant-Appellant.

                      ________________________

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

                         (September 13, 2005)

Before EDMONDSON, Chief Judge, CARNES and MARCUS, Circuit Judges.

PER CURIAM:
       Defendant-Appellant Bernard Cunningham raises a single issue on appeal:

whether the district court committed Booker error, United States v. Booker, 125

S.Ct. 738 (2005),* when it enhanced his sentence based upon the district court’s

finding that he was an armed career criminal under 18 U.S.C. § 924(e). No

reversible error has been shown; we affirm.

       Cunningham pleaded guilty to one count of possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1), without a plea agreement.

The maximum sentence for violation of § 922(g) -- if the armed career criminal

enhancement has no application -- is 10 years imprisonment. See 18 U.S.C. §

924(a)(2). But a defendant who violates § 922(g) and who has been convicted

previously of three or more offenses which are drug trafficking crimes or crimes of

violence (“predicate offenses”) faces a mandatory minimum 180-month sentence

and maximum life sentence as an armed career offender under 18 U.S.C. § 924(e).

The indictment of Cunningham referenced five prior felony convictions -- three of

which served as predicate offenses for application of the section 924(e)

enhancement -- but the indictment failed to allege expressly that these offenses

were section 924(e) predicate offenses or even that Cunningham was subject to an



   *
     Cunningham’s brief was filed before the Supreme Court issued its Booker opinion; his brief
relies on Blakely v. Washington, 124 S.Ct. 2531 (2004).

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enhanced sentence as a career offender. Cunningham preserved a Blakely

objection at sentencing and argues on appeal that his predicate convictions were

neither admitted by him nor proved to the jury beyond a reasonable doubt.

      As Cunningham concedes, his argument runs counter to Almendarez-Torres

v. United States, 118 S.Ct. 1219 (1998), wherein the Supreme Court determined

that recidivism is no separate element of an offense; the government can seek an

enhanced penalty based upon an earlier conviction without charging the fact of the

earlier conviction in the indictment and without proving the earlier conviction

beyond a reasonable doubt. Id. at 1228-29; see also United States v. Marseille,

377 F.3d 1249, 1257 (11th Cir.), cert. denied, 125 S.Ct. 637(2004). Although the

Supreme Court cast a shadow on Almendarez-Torres in Apprendi v. New Jersey,

120 S.Ct 2348, 2362 (2000), Apprendi exempted explicitly prior convictions from

its declaration that a defendant’s sentence may not be increased beyond the

statutory maximum on the basis of judicial factual findings. Id. at 2362-63; see

United States v. Guadamuz-Solis, 232 F.3d 1363 (11th Cir. 2000) (affirming the

continued efficacy of Almendarez-Torres in the light of Apprendi). Blakely, too,

allowed an exception for the fact of a prior conviction from its general

proscription against the use of judicially determined facts to increase a sentence.

Blakely, 124 S.Ct. at 2536; see Marseille, 377 F.3d at 1258 n.14 (recognizing that

                                          3
Blakely leaves prior conviction fact-finding with the court). And again, in

Booker, 125 S.Ct. at 756, the Supreme Court reaffirmed its holding in Apprendi

and again exempted prior convictions from the ambit of impermissible judicial

fact-finding.

      Post-Booker, this Court has said that Almendarez-Torres remains good law

notwithstanding Apprendi and its progeny. In United States v. Orduno-Mireles,

405 F.3d 960 (11th Cir. 2005), we noted that the rationale for excepting prior

convictions is clear: “‘a prior conviction must itself have been established through

procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.’”

Id. at 962, quoting Jones v. United States, 119 S.Ct. 1215, 1227 (1999).

Consequently, the Supreme Court’s Booker conclusion that a mandatory

application of the guidelines is inconsistent with a defendant’s Sixth Amendment

rights, “is not implicated when a defendant’s sentence is enhanced based on a prior

conviction.” Orduno-Mireles, 405 F.3d at 962.

      The Supreme Court’s decision in Shepard v. United States, 125 S.Ct. 1254

(2005), which Cunningham calls to our attention as supplemental authority

pursuant to Fed.R.App.P. 28(j), is not to the contrary. Shephard limits the kinds of

material a court may consider in determining whether a prior conviction

constitutes a “violent felony” for purposes of § 924(e); it nonetheless leaves that

                                          4
determination to the sentencing judge. See United States v. Marcussen, 403 F.3d

982, 984 (8th Cir. 2005) (stating that Shepard “lends further support to the rule that

the sentencing court, not a jury, must determine whether prior convictions qualify

as violent felonies”). And Cunningham does not argue on appeal that his

convictions were insufficient legally to trigger a § 924(e) enhancement. Shephard

does not change our conclusions in this case. See Orduno-Mireles, 405 F.3d at

962 n.3.

      Because the sentencing court was bound by the statutory mandatory

minimum sentence, no issue of statutory Booker error is presented by this appeal.

See United States v. Shelton, 400 F.3d 1325, 1333 n.10 (11th Cir. 2005).

      AFFIRMED.




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