           Case: 17-15215   Date Filed: 08/28/2018   Page: 1 of 6


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-15215
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:16-cr-00381-ELR-AJB-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

BARRY RHODES,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                             (August 28, 2018)

Before WILSON, MARTIN, and JORDAN, Circuit Judges.

PER CURIAM:
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      Barry Rhodes appeals his sentence under the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e)(1), after being convicted of being a felon in

possession of a firearm. He contends the sentence violated due process because

the indictment did not specify his prior felony convictions. After careful review,

we affirm.

                                         I.

      On November 1, 2016, Rhodes was charged with one count of being a felon

in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The indictment

alleged Rhodes had previously “been convicted of at least one of” four listed state

offenses. The crimes were: (1) & (2) two 2012 convictions for violating the

Georgia Controlled Substances Act; (3) a 2012 conviction for burglary of a

dwelling; and (4) a 2010 conviction for violating the Georgia Controlled

Substances Act and possessing a firearm during a felony offense.

      On February 14, 2017, Rhodes pled guilty pursuant to a written plea

agreement. The agreement stated the conviction carried no mandatory minimum

sentence and a maximum sentence of 10 years in prison. At the plea hearing, the

government reiterated to Rhodes that he faced a maximum penalty of ten years in

prison.

      After the guilty plea, the Probation Office completed a pre-sentence

investigation report (“PSR”). The PSR indicated that Rhodes qualified for an


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ACCA sentence. ACCA requires a defendant who has three or more previous

convictions “for a violent felony or a serious drug offense” to serve a mandatory

minimum sentence of fifteen years in prison. 18 U.S.C. § 924(e)(1).

      Rhodes objected that he had no notice the government would seek a

sentence of at least fifteen years and that the PSR altered the minimum and

maximum sentence provisions the parties agreed to in his plea agreement. For this

reason, the district court convened a second plea hearing and allowed Rhodes to

withdraw his guilty plea.

        After withdrawing his plea, Rhodes then entered a second guilty plea, but

without a written agreement. The government advised Rhodes that he now faced a

mandatory minimum sentence of fifteen years in prison. The government also

explained to the district court that it did not initially believe that Rhodes’s

conviction for burglary would qualify as an ACCA predicate offense. However,

after he first entered a guilty plea, this Court held that the crime for which he’d

been convicted did qualify as a crime of violence. Rhodes acknowledged that he

faced a possible ACCA sentence and entered a guilty plea.

      At sentencing, the district court found that Rhodes qualified for an ACCA

sentence and sentenced him to fifteen years in prison. Rhodes appealed.




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                                         II.

       We review de novo constitutional challenges to a sentence. United States v.

Pope, 461 F.3d 1331, 1333 (11th Cir. 2006).

      Rhodes argues his sentence violates the Due Process Clause of the Fifth

Amendment because the allegations in the indictment only provided a basis for a

sentence of up to ten years. As a result, he argues the indictment failed to allege an

essential element necessary for an ACCA sentence and failed to put him on notice

that the government would seek a sentence of at least fifteen years.

      In Almendarez-Torres v United States, 523 U.S. 224, 118 S. Ct. 1219

(1998), the Supreme Court held that a defendant’s prior convictions do not need to

be alleged in the indictment, even if they increase the possible sentence. Id. at 239,

247–48, 118 S. Ct. at 1228–29, 1233. Rhodes argues this standard should not

apply because his conviction required the government to allege and prove that he

had previously been convicted of a felony. Under this court’s precedent, Rhodes’s

argument fails. For one, we have routinely rejected similar claims and affirmed

ACCA sentences for convictions under 18 U.S.C. § 922(g). See, e.g., United

States v. Thomas, 242 F.3d 1028, 1034–35 (11th Cir. 2001) (dismissing claim that

government failed to allege ACCA predicate offenses in indictment charging

violation of § 922(g)). Further, to convict under § 922(g), the government need




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only allege that the defendant was previously convicted of one felony. 1 See 18

U.S.C. § 922(g)(1). But this is a separate question from what is required for a prior

conviction to qualify as one of the three predicate offenses required to support an

ACCA sentence. Compare id. (prior felony for § 922(g) purposes can be any

crime “punishable by imprisonment for a term exceeding one year”) with 18

U.S.C. § 924(e)(2)(B) (ACCA predicate offense must be punishable by more than

one year in prison and must meet qualifications under ACCA’s elements or

enumerated offenses clause). When Rhodes argues his previous conviction was

both an element of the offense and a requirement for the ACCA sentence, he is

conflating the separate requirements under two different statutes. In short, this

case cannot be distinguished from Almendarez-Torres. See Thomas, 242 F.3d at

1034–35.

       Rhodes nonetheless urges us to disregard Almendarez-Torres because later

cases—particularly Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000)

and Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151 (2013)—have cast

doubt on its holding. But we have previously reaffirmed that Almendarez-Torres

remains binding unless and until it is set aside by the Supreme Court. See United

States v. Harris, 741 F.3d 1245, 1250 (11th Cir. 2014) (recognizing “some tension

between Almendarez–Torres on the one hand and Alleyne and Apprendi on the

       1
        Rhodes makes no allegation that the government failed to meet this requirement for
charging him under § 922(g).
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other,” but holding that this Court is “not free to do what the Supreme Court

declined to do in Alleyne, which is overrule Almendarez-Torres”).

      Rhodes next argues the sentencing process was fundamentally unfair

because he had no notice in the indictment that he could face a sentence beyond ten

years. But Rhodes did have notice of the possible ACCA sentence. He was first

put on notice when his PSR indicated that he faced a mandatory minimum sentence

of fifteen years, and he objected to it on that exact ground. In light of his

objection, Rhodes was allowed to withdraw the guilty plea that had been premised

on the idea that he faced a maximum of ten years in prison. After that, and after

specifically acknowledging in court that he understood that he faced a fifteen year

sentence, Rhodes pled guilty again. The district court found he made that decision

freely and voluntarily. Given his clear acknowledgement of the sentence he faced,

and the objections he had earlier lodged on that exact issue, Rhodes had sufficient

notice. This means he has failed to show any fundamental unfairness in the

sentencing.

      AFFIRMED.




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