                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                      December 21, 2005
                      UNITED STATES COURT OF APPEALS
                                                                         Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 05-3168
 v.
                                              (D.C. No. 04-CR-40085-01-JAR)
                                                         (D. Kan.)
 CRAIG L. NICKELS,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before EBEL, McKAY and HENRY, Circuit Judges.


      Nickels appeals the imposition of a statutory mandatory minimum sentence

that was triggered based on a prior conviction, arguing that such a sentence is

unconstitutional where the prior conviction was neither found by a jury nor

admitted by him. As he acknowledges, his argument is foreclosed by the



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This Order and Judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
precedent of this court and the Supreme Court. Exercising jurisdiction under 28

U.S.C. § 1291, we AFFIRM.

                                BACKGROUND

      On February 3, 2004, officials executed a federal search warrant at

Nickels’s residence. The search uncovered a computer containing images of child

pornography, along with numerous computer disks containing similar images.

Nickels eventually pled guilty to possession of child pornography.

      Nickels’s presentence report noted that he had a prior conviction for

possession of child pornography. It further noted that, by statute, the mandatory

minimum sentence for Nickels, as a person with such a prior conviction, was 10

years. See 18 U.S.C. § 2252A(b)(2). The district court sentenced Nickels to this

mandatory minimum term.

                                  DISCUSSION

      On appeal, Nickels argues that the Sixth Amendment requires that a prior

conviction may not be used to trigger a statutory mandatory minimum sentence

unless the conviction is pled in the indictment and proved beyond a reasonable

doubt or admitted by the defendant. Nickels concedes that we have rejected this

proposition in United States v. Moore, 401 F.3d 1220, 1221, 1226 (10th Cir.

2005), but contends that Moore was wrongly decided. Whatever the strength of

Nickels’s argument, “[w]e cannot overrule the judgment of another panel of this


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court. We are bound by the precedent of prior panels absent en banc

reconsideration or a superseding contrary decision by the Supreme Court.”

United States v. Nichols, 169 F.3d 1255, 1261 (10th Cir. 1999). We therefore

AFFIRM.

                                      ENTERED FOR THE COURT



                                      David M. Ebel
                                      Circuit Judge




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