                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 01-4264
RICKY G. STERLING,
              Defendant-Appellant.
                                       
           Appeal from the United States District Court
            for the District of Maryland, at Baltimore.
            Frederic N. Smalkin, Chief District Judge.
                           (CR-00-440-S)

                      Argued: November 2, 2001

                       Decided: March 8, 2002

  Before WIDENER, WILKINS, and TRAXLER, Circuit Judges.



Affirmed by published opinion. Judge Widener wrote the opinion, in
which Judge Wilkins and Judge Traxler joined.


                            COUNSEL

ARGUED: Martin Gregory Bahl, FEDERAL PUBLIC DEFEND-
ER’S OFFICE, Baltimore, Maryland, for Appellant. Susan Quarn-
gesser Amiot, Assistant United States Attorney, Baltimore, Maryland,
for Appellee. ON BRIEF: James Wyda, Federal Public Defender,
Beth M. Farber, Assistant Federal Public Defender, Baltimore, Mary-
land, for Appellant. Stephen M. Schenning, United States Attorney,
Baltimore, Maryland, for Appellee.
2                     UNITED STATES v. STERLING
                              OPINION

WIDENER, Circuit Judge:

   Defendant Ricky Sterling (Sterling) appeals his jury trial convic-
tion of two counts of being a felon in possession of a firearm. Sterling
alleges the district court erred in refusing to suppress the physical
fruits of a statement obtained in violation of Miranda. In addition,
Sterling argues that his sentence of 262 months under the Armed
Career Criminal Act, 18 U.S.C. § 924(e), violates Apprendi because
his firearms conviction under 18 U.S.C. § 922(g) carried a maximum
penalty of ten years. For the reasons that follow we affirm both the
conviction and the sentence.

                                   I.

   On August 5, 2000 Baltimore City Police officers responded to a
call for a domestic disturbance. The officers were met by Janet
McGinnes, Sterling’s wife, who informed the officers that Sterling
had threatened to kill her and that he had two guns, a handgun and
a shotgun.

   There was conflicting testimony about whether Mrs. McGinnes
gave the officers consent to enter the home. Sergeant John N. Sturgen
of the Baltimore Police testified that she gave consent. Mrs. McGin-
nes testified that she did not give the officers permission to enter the
house. The district court credited the officer’s testimony over that of
Mrs. McGinnes and found that there was express consent to enter the
house.

   After entering the house and receiving no response to a knock on
the downstairs bedroom door, officers knocked on a rear, outside door
leading to the basement bedroom. Sterling answered the door in his
underwear. One officer restrained Sterling while the other officers
searched for and found a handgun on the nearby bed. Sterling volun-
tarily stated that he never took the gun out of the house.

  Sergeant Sturgeon then asked Sterling whether he had any other
weapons. Sterling stated that there was another gun in the truck,
                       UNITED STATES v. STERLING                        3
which was parked in front of the house. The police subsequently
searched the truck and found a shotgun. Sterling was charged with
possessing both the handgun and the shotgun.

   Prior to trial, the district court denied Sterling’s motion to suppress
his statements and the physical evidence of the guns. The court first
concluded that Sterling’s wife expressly gave consent to enter the
house and thus, since the officers had consent to search the house,
there was no Fourth Amendment violation in seizing the pistol from
the bedroom.

   Secondly, the court held that the shotgun found in the pickup truck
was admissible under United States v. Elie, 111 F.3d 1135 (4th Cir.
1997), because "there is no exclusionary rule that pertains to viola-
tions of Miranda when physical evidence is seized." Alternatively,
citing New York v. Quarles, 467 U.S. 649 (1984), the district court
noted that the gun was admissible under the public safety exception
to the Miranda rule. In addition, the district court found that Mrs.
McGinnes had also given consent to search the truck.

   Both guns were admitted into evidence at trial and Sterling was
convicted by a jury of both firearms counts charged in the indictment.
The district court found, based on a preponderance of the evidence,
that Sterling had three prior convictions which served as predicates
under Armed Career Criminal Act, 18 U.S.C. § 924(e). As a result,
the court sentenced Sterling to 262 months in prison and three years
of supervised release.

   Sterling first contends that the district court erred in refusing to
suppress the shotgun found in the pickup truck as a result of his
unwarned statement to police. The district court’s legal conclusions
underlying a suppression determination are reviewed de novo while
its factual findings are reviewed for clear error. United States v. Allen,
159 F.3d 832, 838 (4th Cir. 1998).

   Sterling argues that the Supreme Court’s decision in United States
v. Dickerson, 530 U.S. 428 (2000), which acknowledged Miranda as
a constitutional decision, changed the legal landscape and negated our
holding in United States v. Elie, 111 F.3d 1135 (4th Cir. 1997), where
we declined to extend the "fruit of the poisonous tree" doctrine to
4                     UNITED STATES v. STERLING
physical evidence discovered as a result of statements obtained in vio-
lation of Miranda. We disagree.

   In Elie, we relied on two Supreme Court cases to find that the
"fruits doctrine" is inapplicable in departures from Miranda: Michi-
gan v. Tucker, 417 U.S. 433 (1974), and Oregon v. Elstad, 470 U.S.
298 (1985). In Tucker the Court declined to extend the fruits doctrine
to testimony of a witness who was identified through a Miranda vio-
lation, while in Elstad the Court held that a voluntary statement given
after Miranda warnings is admissible, notwithstanding prior
unwarned statements, so long as both statements were not coerced.
Although we recognized in Elie that "the Supreme Court has not spe-
cifically rejected application of the ‘fruit of the poisonous tree’ doc-
trine to physical evidence discovered as the result of a statement
obtained in violation of Miranda," Elie, 111 F.3d at 1141, we con-
cluded that the exceptions the Court established in Tucker and Elstad
supported our holding that "derivative evidence obtained as a result
of an unwarned statement that was voluntary under the Fifth Amend-
ment is never ‘fruit of the poisonous tree.’" Elie, 111 F.3d at 1142.

   Subsequent to our Elie decision, the Court held in Dickerson that,
as a Constitutional decision, Miranda could not be overruled by legis-
lative action and reaffirmed that "Miranda and its progeny in this
Court govern the admissibility of statements made during custodial
interrogation in both state and federal courts." Dickerson, 530 U.S. at
431.

   Although Dickerson held Miranda to be with Constitutional signif-
icance, Miranda only held that certain warnings must be given before
a suspect’s statements made during custodial interrogation can be
admitted into evidence. In addition, we are of opinion that the Court’s
reference to and reaffirmation of Miranda’s progeny indicates that the
established exceptions, like those in Tucker and Elstad, survive. Thus,
the distinction between statements and derivative evidence survives
Dickerson. In fact, Dickerson reiterated the distinction made in Elstad
by stating that: "Our decision in that case — refusing to apply the tra-
ditional ‘fruits’ doctrine developed in Fourth Amendment cases —
does not prove that Miranda is a nonconstitutional decision, but sim-
ply recognizes the fact that unreasonable searches under the Fourth
                       UNITED STATES v. STERLING                        5
Amendment are different from unwarned interrogation under the Fifth
Amendment." Dickerson, 530 U.S. at 441.

   Of course after Dickerson, our observation in Elie that "[I]t is well
established that the failure to deliver Miranda warnings is not itself
a constitutional violation," Elie, 111 F.3d at 1142, is no longer the
law. Similarly, to the extent that our decision in Dickerson, 166 F.3d
667 (4th Cir. 1999) (reversed), or 18 U.S.C. § 3501, or Tucker, or
Elstad, suggested that Miranda was a prophylactic decision, that does
not mean that Miranda was not a Constitutional decision as the
Court’s recent clarification in Dickerson sets out. So, in our opinion,
Dickerson does not overrule Tucker or Elstad, and our holding in
Elie, based on those two cases, survives. In that respect, we also note
that overruling by implication is not favored. See Agostini v. Felton,
521 U.S. 203, 237 (1997); see also Columbia Union Coll. v. Clarke,
159 F.3d 151, 158 (4th Cir. 1998).

  Accordingly, the shotgun found in the pickup truck was properly
admitted into evidence.1

                                   II.

  Sterling next argues that his sentence of 262 months under the
Armed Career Criminal Act, 18 U.S.C. § 924(e), violates Apprendi v.
New Jersey, 530 U.S. 466 (2000), because the government did not
prove his three prior qualifying felony convictions beyond a reason-
able doubt.

   Apprendi held that "other than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statu-
tory maximum must be submitted to a jury, and proved beyond a rea-
sonable doubt." Apprendi, 530 U.S. at 490. The exception for a prior
conviction included in the Apprendi rule was based on Almendarez-
Torres v. United States, 523 U.S. 224 (1998) (holding that 8 U.S.C.
§ 1326(b)(2), which authorizes increased sentence for a deported
  1
   Because we find that the district court was correct to deny suppression
of the shotgun based on Elie, we need not, and do not, address whether
the district court was correct in applying the public safety exception of
New York v. Quarles, 467 U.S. 649 (1984).
6                      UNITED STATES v. STERLING
alien’s illegal return if the deportation was subsequent to an aggra-
vated felony conviction, is a penalty provision and that the aggravated
felony need not be charged in the indictment). Because the Apprendi
opinion may have expressed some ambivalence about Almendarez-
Torres, see Apprendi, 530 U.S. at 489 ("it is arguable that
Almendarez-Torres was incorrectly decided"), Sterling urges us to
find that Almendarez-Torres did not survive Apprendi intact. We
decline to so find.

   Contrary to Sterling’s assertions, we find that Almendarez-Torres
was not overruled by Apprendi and is the law. See United States v.
Dabeit, 231 F.3d 979, 984 (5th Cir. 2000) (finding that Apprendi did
not overrule Almendarez-Torres); United States v. Gatewood, 230
F.3d 186, 192 (6th Cir. 2000) (finding that despite Apprendi,
Almendarez-Torres remains the law). Therefore, in keeping with the
prior conviction exception in the Apprendi rule, the district court
appropriately used Sterling’s prior convictions to enhance his sen-
tence under the Armed Career Criminal statute, 18 U.S.C. § 924(e).

    Accordingly, Sterling’s conviction and sentence are

                                                            AFFIRMED.2
    2
   If the brief of the defendant on appeal may be construed to contest the
proof of the convictions qualifying for the sentencing provisions neces-
sary for sentencing under 18 U.S.C. § 924(e), we note that the transcript
of the sentencing hearing shows that two of the necessary offenses were
admitted by the defendant, and a third shows that the opinion of the state
judge indicates that Sterling entered a plea of guilty to charges of break-
ing and entering a dwelling and grand larceny. A.131; A.134. The record
on appeal showing nothing to dispute these convictions, we affirm the
holding of the district court that they were proven by a preponderance of
the evidence. While the district court correctly found the convictions
proven by a preponderance of the evidence, it stated that if called upon,
it would have found them proven by clear and convincing evidence or
even beyond a reasonable doubt based upon documentation. A.139.
