              Case: 12-14842    Date Filed: 05/09/2013   Page: 1 of 3


                                                         [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-14842
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:12-cr-20007-FAM-1

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                      versus

FLORNOY SMITH,


                                                         Defendant-Appellant.

                          ________________________

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

                                  (May 9, 2013)

Before CARNES, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

      Flornoy Smith appeals his sentence of 180 months of imprisonment under

the Armed Career Criminal Act following his plea of guilty to being a felon in
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possession of a firearm and ammunition. 18 U.S.C. §§ 922(g)(1), 924(e). Smith

argues that his prior conviction in a Florida court for fleeing and eluding a police

officer, Fla. Stat. § 316.1935(2), did not qualify as a violent felony under the Act.

Smith also argues, for the first time, that the district court violated his rights under

the Fifth and Sixth Amendments by sentencing him as an armed career criminal

based on prior convictions that were neither charged in his indictment nor admitted

by him. We affirm.

      The district court did not err in classifying Smith’s prior conviction as a

violent felony. Smith’s presentence investigation report classified as a violent

felony his prior conviction for “willfully flee[ing] or attempt[ing] to elude a law

enforcement officer in an authorized [and marked] law enforcement patrol

vehicle[] . . .with [its] siren and lights activated.” Fla. Stat. § 316.1935(2). After

Smith objected to the classification, the government acknowledged that a person

could violate the statute by pedestrian flight, but argued that certified copies of

Smith’s judgment of conviction and charging document proved that he fled using a

vehicle. Those documents established that Smith entered a plea of guilty to an

information charging that he, “as an operator of a motor vehicle, did unlawfully

and willfully flee or attempt to elude a law enforcement officer . . . in violation of

[§] 316.1935(2).” And the district court correctly relied on the certified documents

to determine the nature of Smith’s offense. See Shepard v. United States, 544 U.S.


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13, 26, 125 S. Ct. 1254, 1263 (2005); United States v. Gandy, 710 F.3d 1234, 1237

(11th Cir. 2013). While Smith’s case was pending on appeal, we held in United

States v. Petite, 703 F.3d 1290 (11th Cir. 2013), that a “prior conviction for vehicle

flight in violation of Fla. Stat. § 316.1935(2) qualifies as a violent felony under the

Armed Career Criminal Act.” Id. at 1301. Under Petite, the district court did not

err in treating Smith’s prior conviction as a predicate offense.

      The district court also did not err, much less plainly err, in enhancing

Smith’s sentence based on his prior convictions. Smith acknowledges that his

argument about the violation of his constitutional rights is foreclosed by the

decision of the Supreme Court in Almendarez-Torres v. United States, 523 U.S.

224, 118 S. Ct. 1219 (1998). “[W]e are bound by Almendarez–Torres until it is

explicitly overruled by the Supreme Court.” United States v. Dowd, 451 F.3d

1244, 1253 (11th Cir. 2006).

      We AFFIRM Smith’s sentence.




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