              Case: 13-13141   Date Filed: 02/07/2014   Page: 1 of 6


                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 13-13141
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 8:12-cr-00514-VMC-EAJ-1

UNITED STATES OF AMERICA,


                                                              Plaintiff –Appellee,


                                     versus

MARIO A. RIVAS,


                                                           Defendant –Appellant.

                          ________________________

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

                               (February 7, 2014)

Before TJOFLAT, MARCUS and JORDAN, Circuit Judges.

PER CURIAM:

      Mario Alberto Rivas appeals his 180-month sentence after pleading guilty to

one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §
              Case: 13-13141       Date Filed: 02/07/2014   Page: 2 of 6


922(g)(1) and receiving a sentence enhancement pursuant to the Armed Career

Criminal Act, 18 U.S.C. § 924(e) (“ACCA”). On appeal, Rivas argues that: (1) his

prior convictions under the Florida fleeing and eluding statute did not qualify as

violent felonies under the ACCA; (2) the district court erred in classifying one

prior conviction under the Florida fleeing and eluding statute as a violent felony

under the ACCA where that conviction was not charged in his indictment, in light

of Alleyne v. United States, 570 U.S. ___, 133 S.Ct. 2151 (2013); and (3) the

district court should not have classified his prior Florida burglary convictions as

violent felonies under the ACCA because the Florida burglary statute is indivisible

in light of Descamps v. United States, 570 U.S. ___, 133 S.Ct. 2276 (2013), and

his burglary convictions did not constitute generic burglaries under the ACCA.

After careful review, we affirm.

      We review de novo whether a particular prior conviction qualifies as a

violent felony under the ACCA. United States v. Petite, 703 F.3d 1290, 1292 (11th

Cir.), cert. denied, 134 S.Ct. 182 (2013). We review sentencing objections based

on Alleyne that were not preserved before the district court for plain error. United

States v. McKinley, 732 F.3d 1291, 1295-96 (11th Cir. 2013). This standard

requires that “(1) there must be error; (2) the error must be plain; (3) the error must

affect the appellant’s substantial rights, and (4) the error must seriously affect the

fairness, integrity, or public reputation of judicial proceedings.” United States v.


                                           2
              Case: 13-13141     Date Filed: 02/07/2014   Page: 3 of 6


Pantle, 637 F.3d 1172, 1174 (11th Cir. 2011) (quotation omitted). We are bound to

follow the decisions of the Supreme Court unless and until those decisions are

overruled. See United States v. Gandy, 710 F.3d 1234, 1237 n.3 (11th Cir.), cert.

denied, 134 S.Ct. 304 (2013). We also must follow the holding of a prior panel of

this Court “unless and until it is overruled or undermined to the point of abrogation

by the Supreme Court or by this court sitting en banc.” United States v. Archer,

531 F.3d 1347, 1352 (11th Cir. 2008).

      First, we are unconvinced by Rivas’s argument that his prior convictions did

not qualify as violent felonies under the ACCA. A defendant is a “career offender”

under 18 U.S.C. § 924(e) if at the time of his instant offense of conviction he has

“three previous convictions . . . for a violent felony or a serious drug offense, or

both . . . .” 18 U.S.C. § 924(e)(1). Under the ACCA, a “violent felony” is one that

      (1) has as an element the use, attempted use, or threatened use of physical
          force against the person of another; or

      (2) is burglary, arson, or extortion, involves use of explosives, or otherwise
          involves conduct that presents a serious potential risk of physical injury
          to another.

Id. § 924(e)(2)(B).

      In Petite, we held that a simple fleeing and eluding conviction under

Florida’s fleeing and eluding statute is categorically a violent felony under the

ACCA because there is an inherent risk of violence in using a vehicle to flee and

elude a police officer. 703 F.3d at 1296, 1300-01. Using a vehicle to flee shows a
                                         3
              Case: 13-13141     Date Filed: 02/07/2014   Page: 4 of 6


“determination to elude capture,” in defiance of law enforcement, that “makes a

lack of concern for the safety of property and persons of pedestrians and other

drivers an inherent part of the offense.” Sykes v. United States, 564 U.S. ___,

___, 131 S.Ct. 2267, 2273 (2011). Beyond posing serious and substantial risks, we

also determined that the risks posed by simple vehicle flight are similar in degree

of danger to the risks of arson and burglary. Petite, 703 F.3d at 1295-96; Sykes,

131 S.Ct. at 2274 (noting that vehicle flight actually “presents more certain risk as

a categorical matter than burglary”). Accordingly, “any form of intentional vehicle

flight from a police officer presents powerful risks comparable to those presented

by arson and burglary.” Petite, 703 F.3d at 1296 (emphasis omitted).

      Here, Rivas has been convicted of fleeing to elude under Florida’s fleeing

and eluding statute twice. We’ve already held, in Petite, that acts of fleeing and

eluding pose serious and substantial risks of danger. 703 F.3d at 1295-96. Petite

has not been overruled or undermined to the point of abrogation, so we are bound

by our decision. Archer, 531 F.3d at 1352. Therefore, the district court did not err

when it found that Rivas’s convictions for fleeing to elude qualified as violent

felonies under the ACCA.

      We are also unpersuaded by Rivas’s claim that the district court plainly

erred under Alleyne. In Almendarez-Torres v. United States, 523 U.S. 224 (1998),

the Supreme Court held that a prior conviction is not a fact that must be alleged in


                                         4
               Case: 13-13141   Date Filed: 02/07/2014     Page: 5 of 6


the indictment or found by a jury beyond a reasonable doubt. Id. at 239-47. The

Supreme Court’s subsequent decisions in Apprendi v. New Jersey, 530 U.S. 466

(2000), Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker,

543 U.S. 220 (2005), did not disturb the holding of Almendarez-Torres. United

States v. Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005).

      In Alleyne, the Supreme Court overturned Harris v. United States, 536 U.S.

545 (2002), and held that any factor that increases a defendant’s mandatory

minimum sentence is an element of the crime that must be found by a jury.

Alleyne, 133 S.Ct. at 2155. Alleyne, however, did not address prior-conviction

sentencing enhancements. Instead, the Supreme Court explicitly stated that it was

not revisiting the “narrow exception to this general rule for the fact of a prior

conviction.”   Id. at 2160 n.1.     As the Supreme Court has yet to overrule

Almendarez-Torres, we continue to follow that case as binding precedent. See

United States v. Thomas, 242 F.3d 1028, 1035 (11th Cir. 2001) (noting that we are

“bound to follow Almendarez-Torres unless and until the Supreme Court itself

overrules that decision”).

      Here, the district court did not plainly err when it determined that Rivas’s

fleeing and eluding conviction that was not charged in his indictment qualified as a

violent felony under the ACCA.        Alleyne expressly left Almendarez-Torres

undisturbed, and we are bound to follow Almendarez-Torres as binding precedent.


                                         5
              Case: 13-13141    Date Filed: 02/07/2014   Page: 6 of 6


Alleyne, 133 S.Ct. at 2160 n.1.; Almendarez-Torres, 523 U.S. at 239-47; Thomas,

242 F.3d at 1035. Therefore, Rivas’s prior conviction for fleeing and eluding did

not need to be charged in his indictment in order to qualify as a violent felony

under the ACCA.

      Finally, because we’ve found no error in the district court’s conclusion that

Rivas’s two fleeing and eluding convictions and his uncontested federal drug crime

conviction qualify as violent felonies, these three convictions are sufficient for

purposes of the ACCA and the district court did not err in sentencing Rivas as an

armed career criminal. Moreover, we need not address his argument concerning a

fourth conviction -- that Florida’s burglary statute is overbroad. Accordingly, we

affirm.

      AFFIRMED.




                                        6
