                      NONPRECEDENTIAL DISPOSITION
                        To be cited only in accordance with
                                Fed. R. App. P. 32.1




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

                              Submitted April 4, 2007*
                               Decided April 4, 2007

                                       Before

                    Hon. RICHARD A. POSNER, Circuit Judge

                    Hon. DIANE P. WOOD, Circuit Judge

                    Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 06-3905

UNITED STATES OF AMERICA,                    Appeal from the United States District
    Plaintiff-Appellee,                      Court for the Eastern District of
                                             Wisconsin
      v.
                                             No. 06-CR-33
CLARENCE A. ELLIS III,
    Defendant-Appellant.                     Lynn Adelman,
                                             Judge.

                                     ORDER

       Clarence Ellis pleaded guilty to possession of ammunition by a felon, which
ordinarily carries a maximum penalty of ten years’ imprisonment. See 18 U.S.C.
§§ 922(g)(1), 924(a)(2). Ellis, though, had prior convictions for robbery, arson,
aggravated battery, burglary, and escape, so the probation officer recommended
that he be sentenced under the Armed Career Criminal Act (“ACCA”), which
mandates a minimum of 15 years’ imprisonment if a conviction under § 922(g)
follows three prior convictions for a violent felony or serious drug offense. See 18


      The parties have waived oral argument in this case, and thus the appeal is
      *

submitted on the briefs and the record. See Fed. R. App. P. 34(f).
No. 06-3905                                                                  Page 2

U.S.C. § 924(e). Ellis objected that the district court could not apply the
enhancement unless he admitted the prior convictions or the government proved
them to a jury beyond a reasonable doubt, but the district court rejected his
argument and sentenced him to 15 years.

       On appeal Ellis insists that it is error to apply the ACCA based upon prior
convictions that have not been admitted by him or proved to a jury beyond a
reasonable doubt. But the ACCA is an enhancement provision, Taylor v. United
States, 495 US. 575 (1990), and Ellis does not dispute that Almendarez-Torres v.
United States, 523 U.S. 224 (1998), holds that prior convictions used to trigger a
sentence enhancement do not have to be admitted by the defendant or proved
beyond a reasonable doubt. Ellis contends, however, that in light of the Supreme
Court’s decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000); United States v.
Booker, 543 U.S. 220 (2005); and Shepard v. United States, 544 U.S. 13 (2005),
Almendarez-Torres is vulnerable to being overruled and therefore the ACCA must
be reinterpreted to avoid “serious Fifth and Sixth Amendment questions.”

       We are not free to undertake that endeavor. In Apprendi the Supreme Court
held that generally “any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt,” but at the same time the Court excepted from its holding the
“fact of a prior conviction.” 530 U.S. at 490. The Court’s cases since Apprendi have
not changed that holding, and indeed the Court has acknowledged the continuing
viability of Almendarez-Torres as applicable to the ACCA. See Shepard, 544 U.S. at
24-26. We are bound by those decisions. United States v. Stevens, 453 F.3d 963,
967 (7th Cir. 2006).

                                                                       AFFIRMED.
