                                                         [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS
                                                        FILED
                    FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                      ________________________   ELEVENTH CIRCUIT
                                                     MAY 12, 2008
                                                  THOMAS K. KAHN
                            No. 07-14735
                                                       CLERK
                         Non-Argument Calendar
                       ________________________

                D. C. Docket No. 07-00020-CR-4-RH-WCS

UNITED STATES OF AMERICA,


                                                     Plaintiff-Appellee,

                                  versus

CARLOS TIRAN MCCRAY,

                                                     Defendant-Appellant.


                       ________________________

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

                              (May 12, 2008)

Before TJOFLAT, BLACK and PRYOR, Circuit Judges.

PER CURIAM:
      Carlos Tiran McCray appeals his sentence of 188 months’ imprisonment for

possession of a firearm by a convicted felon. McCray invites us to revisit our

holding in United States v. Burge, 407 F.3d 1183, 1190-91 (11th Cir. 2005), that

juvenile adjudications provide sufficient safeguards to ensure the reliability

required by Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), and thus under the

Sixth Amendment are a permissible basis on which to classify a defendant as an

armed career criminal and enhance his sentence accordingly. McCray asserts

circuit courts are divided over whether Apprendi’s exception for prior convictions

extends to juvenile adjudications that were not tried by a jury.

      We review de novo legal questions concerning the Constitution. United

States v. Noel, 231 F.3d 833, 836 (11th Cir. 2000). In Apprendi, 120 S. Ct. at

2362-63, the Supreme Court held “[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.”

Recognizing this exception, we have stated “[t]he government need not allege in its

indictment and need not prove beyond a reasonable doubt that a defendant had

prior convictions for a district court to use those convictions for purposes of

enhancing a sentence.” Burge, 407 F.3d at 1188 (quotations omitted). In Burge,

we held prior juvenile adjudications fell within Apprendi’s prior conviction



                                           2
exception. See Burge, 407 F.3d at 1191 (“At a minimum, however, Apprendi’s

prior conviction exception is based on the procedural safeguards that attach to a

prior conviction or juvenile adjudication.”). “[O]nly the Supreme Court or this

Court sitting en banc can judicially overrule a prior panel decision.” United States

v. Marte, 356 F.3d 1336, 1344 (11th Cir. 2004).

      As McCray concedes, Burge decides this issue. A prior juvenile

adjudication that is not subject to a jury trial can be used as a basis for a sentence

enhancement under the Armed Career Criminal Act, 18 U.S.C. § 924(e). Thus, the

district court did not err by categorizing McCray as an armed career criminal based

on prior juvenile adjudications.

      AFFIRMED.




                                            3
