                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             NOV 30, 2006
                              No. 06-12799                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                   D. C. Docket No. 04-80159-CR-DTKH

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

STEVEN ROBINSON PINKNEY,

                                                          Defendant-Appellant.


                        ________________________

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

                            (November 30, 2006)

Before DUBINA, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

     Steven Robinson Pinkney appeals his 180-month sentence for possession of
a firearm and ammunition by a convicted felon in violation of 18 U.S.C.

§§ 922(g)(1) and 924(e). Pinkney argues that his mandatory minimum sentence as

an armed career criminal violated his Sixth Amendment rights because the prior

convictions underlying his armed career criminal classification were neither

alleged in the indictment nor admitted by Pinkney.

      Because Pinkney objected to the enhancement of his sentence in the district

court, we review the sentence de novo. United States v. Paz, 405 F.3d 946, 948

(11th Cir. 2005). Under 18 U.S.C. § 924(e), a § 922(g) offender who has three

prior convictions for a violent felony or serious drug offense is subject to a

mandatory 15-year minimum sentence. In Almendarez-Torres v. United States, the

Supreme Court held that a prior conviction is not a fact which must be admitted by

a defendant or found by a jury beyond a reasonable doubt. 523 U.S. 224, 258, 118

S.Ct. 1219, 1238, 140 L.Ed.2d 350 (1998).      In addition, the Supreme Court held

that an earlier conviction, which merely authorizes a court to increase a sentence

for recidivism, is not required to be alleged in the indictment. Almendarez-Torres,

523 U.S. at 226, 118 S.Ct. 1222. In its subsequent seminal decisions in Apprendi

v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Blakely v.

Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United

States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the



                                           2
Supreme Court reaffirmed the holding in Almendarez-Torres. See United States v.

Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005). In Apprendi, the Court held that

"[o]ther than the fact of a prior conviction, 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." Apprendi, 530 U.S. at 490, 120 S.Ct. at

2362-63 (emphasis added). The Court revisited Apprendi in Blakely, clarifying

"that the ‘statutory maximum' for Apprendi purposes is the maximum sentence a

judge may impose solely on the basis of the facts reflected in the jury verdict or

admitted by the defendant[;]" it did not disturb Apprendi's exception for prior

convictions. Blakely, 542 U.S. at 303, 124 S.Ct. at 2537 (emphasis added).

Subsequently, in Booker, the Court held that Blakely applied to the Federal

Sentencing Guidelines and reaffirmed its holding in Apprendi. 543 U.S. at 243-44,

125 S.Ct. at 755-56.

      Shortly after handing down its decision in Booker, the Supreme Court

decided Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205

(2005). In Shepard, the Supreme Court limited the types of evidence a district

court can constitutionally consider to determine whether a prior burglary

conviction qualifies as a violent felony for purposes of the Armed Career Criminal

Act ("ACCA") where the statutory definition of burglary includes both violent and



                                            3
non-violent conduct. Shepard, 544 U.S. at 26, 125 S.Ct. at 1263. A plurality of

the Court explained that, while a dispute over whether a burglary was a violent

felony, for purpose of the ACCA, could be "described as a fact about a prior

conviction, it [was] too far removed from the conclusive significance of a prior

judicial record, and too much like the findings subject to Jones [v. United States,

526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)] and Apprendi to say that

Almendarez-Torres clearly authorizes a judge to resolve the dispute." Shepard, 544

U.S. at 25, 125 S.Ct. at 1262.

      Since Shepard, we have consistently held that Almendarez-Torres remains

good law "until the Supreme Court determines that Almendarez-Torres is not

controlling precedent." United States v. Orduno-Mireles, 405 F.3d 960, 963 (11th

Cir.), cert. denied, 126 S.Ct. 233 (2005). See also United States v.

Camacho-Ibarquen, 410 F.3d 1307, 1316 n.3 (11th Cir.), cert. denied, 126 S.Ct.

457 (2005)("Although recent decisions, including Shepard . . . , may arguably cast

doubt on the future prospects of Almendarez-Torres's holding regarding prior

convictions, the Supreme Court has not explicitly overruled Almendarez-Torres.

As a result, we must follow Almendarez-Torres.")(citations omitted). Further, this

Court has held that, for ACCA purposes, district courts may determine both the

existence of a conviction and the nature of a conviction, to the extent it appears in



                                           4
the "statutory elements, charging documents, any plea agreement and colloquy or

jury instructions, or comparable judicial record." United States v. Greer, 440 F.3d

1267, 1275 (11th Cir. 2006). Therefore, "Shepard does not bar judges from

finding whether prior convictions qualify for ACCA purposes; it restricts the

sources or evidence that a judge (instead of a jury) can consider in making that

finding." Id.

      Upon review of the record and consideration of the parties’ briefs, we

discern no reversible error. Until the Supreme Court specifically overrules

Almendarez-Torres, it remains binding precedent. According to

Almendarez-Torres, prior convictions are not facts which must be admitted by a

defendant, alleged in the indictment, or found by a jury beyond a reasonable doubt.

We have previously held that district courts may determine both the fact and nature

of prior convictions for ACCA purposes. Therefore, the district court did not err

by enhancing Pinkney's sentence based on his prior convictions that were neither

alleged in the indictment nor admitted by Pinkney.



AFFIRMED




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