                                                      [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                                                                 FILED
                        ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                                May 5, 2005
                              No. 04-14647
                                                          THOMAS K. KAHN
                          Non-Argument Calendar               CLERK
                        ________________________

                 D. C. Docket No. 04-00047-CR-0RL-28JGG

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

SEMONIA M. DAVIS,

                                                          Defendant-Appellant.


                        ________________________

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

                                (May 5, 2005)

Before TJOFLAT, DUBINA and PRYOR, Circuit Judges.

PER CURIAM:

     Semonia M. Davis appeals his conviction and sentence for possessing with
intent to distribute five grams or more of crack cocaine, in violation of 21 U.S.C.

sections 841(a)(1) and (b)(1)(B)(iii). Davis raises the following three arguments

on appeal: (1) his sentence violated Blakely v. Washington, 124 S. Ct. 2531

(2004), and United States v. Booker, 125 S. Ct. 738 (2005); (2) the failure of the

government to allege Davis’s previous convictions in the indictment or prove those

past convictions to a jury precluded use of the convictions to enhance his sentence;

and (3) 21 U.S.C. section 841 is unconstitutional in the light of Apprendi v. New

Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). Davis’s arguments fail, and we

affirm the district court.

       On March 17, 2004, Davis was indicted on one count of possession of five

grams or more of a mixture or substance containing cocaine base with intent to

distribute, in violation of 21 U.S.C. sections 841 (a)(1) and (b)(1)(B)(iii). Davis

pleaded guilty to the charge, but at sentencing he objected to the application of the

federal sentencing guidelines under Blakely. The district court stated that it did not

need to decide the constitutionality of the sentencing guidelines because Davis was

subject to a mandatory minimum sentence of five years’ imprisonment. The

district court then sentenced Davis to the five-year minimum.

       On appeal, Davis again challenges the application of the sentencing

guidelines, and Davis raises two other issues. Davis argues, for the first time on



                                          2
appeal, that the district court erred when it calculated his criminal history based on

previous convictions that were not charged in the indictment or proved to a jury,

and that 21 U.S.C. section 841 is unconstitutional under Apprendi.

      We apply two different standards of review in this appeal. We review

preserved constitutional errors de novo, but “will reverse only for harmful error.”

See United States v. Sanchez, 269 F.3d 1250, 1272 (11th Cir. 2002) (en banc).

Errors raised for the first time on appeal are reviewed for plain error. United States

v. Candelario, 240 F.3d 1300, 1306 (11th Cir. 2001).

      As to the preserved issue, Davis pleaded guilty to the crime of possession

with intent to distribute five grams or more of cocaine base. This offense carries a

mandatory minimum sentence of five years’ imprisonment, which Davis received.

21 U.S.C. § 841(b)(1)(B)(iii). The sentence was not enhanced nor based on facts

not admitted by Davis. The district court also did not consider the guidelines as

either mandatory or advisory. No Booker error occurred.

      Davis next argues that, but for his previous convictions, he would have been

eligible for safety-valve relief from the statutory minimum sentence. He concedes

that the holding of the Supreme Court in Almendarez-Torres v. United States, 523

U.S. 224, 247, 118 S. Ct. 1219, 1233 (1998), that a defendant’s prior conviction is

a sentencing factor, not an element of the offense, precludes his argument, but



                                           3
contends that “[t]he position of the various Supreme Court [J]ustices . . . leave the

future of Almendarez-Torres in doubt.” Davis did not raise this argument below,

and it fails the plain error test.

       To satisfy plain-error, the defendant must establish that (1) the district court

committed “error,” (2) the error was plain, and (3) the error “affected substantial

rights.” United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 1776 (1993).

An error affects substantial rights if it “affected the outcome of the district court

proceedings.” Id. at 734, 113 S. Ct. at 1778. If these criteria are met, we have the

discretion to correct the plain error if it “seriously affect[s] the fairness, integrity,

or public reputation of judicial proceedings.” Id. at 732, 113 S. Ct. at 1776

(internal quotations and citation omitted). Davis cannot establish even the

threshold of this test: that error occurred.

       In Almendarez-Torres, the Supreme Court established that a defendant’s

prior conviction in the context of an enhanced penalty provision constitutes a

sentencing factor that need not be alleged in the indictment or proven to a jury

beyond a reasonable doubt. 523 U.S. at 239-47, 118 S. Ct. at 1229-33. In

Apprendi, the Court held that “[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.” 530 U.S. at



                                               4
490, 120 S. Ct. at 2362-63. We have held that “Almendarez-Torres remains the

law until the Supreme Court determines that Almendarez-Torres is not controlling

precedent.” United States v. Miles, 290 F.3d 1341, 1348 (11th Cir. 2002)

(quotation marks and citation omitted). The district court did not err when it

determined Davis’s criminal history based on his previous convictions.

      Finally, Davis challenges the constitutionality of section 841(b) in the light

of Apprendi. Davis concedes that our precedent precludes his argument, but raises

the issue to preserve it for further review. Davis did not raise this issue in the

district court, and this argument fails. In United States v. Sanchez, we held that

section 841 was constitutional under Apprendi. 269 F.3d at 1267-74. We noted

that “Apprendi did not announce any new principles of statutory construction . . .

but instead impose[d] only an external constitutional restraint under the Sixth

Amendment and the Due Process Clause.” Id., 269 F.3d at 1268. Davis’s

conviction under section 841, therefore, was not error.

      AFFIRMED.




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