            Case: 14-15184   Date Filed: 05/27/2015   Page: 1 of 4


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-15184
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 9:14-cr-80105-DTKH-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

DANA E. TUOMI,

                                                          Defendant-Appellant.

                       ________________________

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

                              (May 27, 2015)

Before TJOFLAT, WILSON, and JULIE CARNES, Circuit Judges.

PER CURIAM:
               Case: 14-15184      Date Filed: 05/27/2015    Page: 2 of 4


      Defendant Dana Tuomi appeals his 132-month sentence, imposed below the

advisory guideline range of 151 to 188 months, after pleading guilty, pursuant to a

written plea agreement, to one count of bank robbery, in violation of 18 U.S.C.

§ 2113(a). After review, we affirm.

                                                I.

      Defendant argues for the first time on appeal that the residual clause of the

career offender enhancement, pursuant to U.S.S.G. § 4B1.2(a)(2), that was used to

enhance his sentence based on his prior convictions, is unconstitutionally vague.

Generally, we review a constitutional sentencing issue de novo, provided the

objection was raised in the district court. United States v. Steed, 548 F.3d 961, 978

(11th Cir. 2008). However, because Defendant failed to challenge the

constitutionality of the residual clause below, we review this claim only for plain

error. United States v. Weeks, 711 F.3d 1255, 1261 (11th Cir. 2013). Therefore, in

order to prevail, Defendant must demonstrate that there was error, the error was

plain, the error affects his substantial rights, and the error seriously affects the

fairness, integrity, or reputation of the judicial proceedings. United States v.

Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).

      In United States v. Gandy, we expressly held that the residual clause of the

Armed Career Criminal Act (“ACCA”) is not unconstitutionally vague. 710 F.3d

1234, 1239 (11th Cir. 2013), cert denied, 134 S. Ct. 304 (2013). We have since


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applied our holding in Gandy to claims concerning the residual clause in the career

offender enhancement, since the residual clauses in these two provisions are

virtually identical. United States v. Travis, 747 F.3d 1312, 1314 n.1 (11th Cir.

2014) (noting that the argument that the career offender guideline residual clause is

unconstitutionally vague is foreclosed by this Court’s decision in Gandy), cert.

denied, 135 S. Ct. 148 (2014); see also Gilbert v. United States, 640 F.3d 1293,

1309 n.16 (11th Cir. 2011) (en banc) (noting that this Court has held that the

residual clauses in the ACCA and career offender provision are “virtually

identical” “so that decisions about one apply to the other”). Accordingly,

Defendant has shown no error, plain or otherwise, as his argument is squarely

foreclosed by our decision in Gandy. And, “[w]e are bound by prior precedent

decisions unless or until we overrule them while sitting en banc, or they are

overruled by the Supreme Court.” United States v. Jordan, 635 F.3d 1181, 1189

(11th Cir. 2011).

                                         II.

      Defendant also argues on appeal that the district court erred by applying the

career offender enhancement because the prior convictions used as the predicate

offenses for the enhancement were not alleged in the charging information.

Because Defendant raised this objection in the district court, we review this

constitutional issue de novo. See Steed, 548 F.3d at 978.


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      In Almendarez-Torres v. United States, the Supreme Court held that a

defendant’s prior convictions could be considered and used to enhance a

defendant’s sentence without having been alleged in the indictment or proven

beyond a reasonable doubt. 523 U.S. 224, 226-27 (1998). This holding still

stands, and “we are bound to follow Almendarez-Torres unless and until the

Supreme Court itself overrules that decision.” United States v. Thomas, 242 F.3d

1028, 1035 (11th Cir. 2001). Accordingly, we conclude that the district court did

not err when it relied on prior convictions not alleged in the charging information

to enhance Defendant’s sentence.

      For these reasons, Defendant’s sentence is AFFIRMED.




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