                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                           NOVEMBER 22, 2006
                               No. 05-14400                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                     D. C. Docket No. 05-14017-CR-JEM

UNITED STATES OF AMERICA,


                                                      Plaintiff-Appellee,

                                    versus

DAVID LOUIS HUNTER,

                                                       Defendant-Appellant.


                         ________________________

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

                             (November 22, 2006)

Before ANDERSON, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

     David Louis Hunter appeals his life sentence, imposed after he was
convicted of possession with intent to distribute 50 grams or more of crack

cocaine, in violation of 21 U.S.C. § 841(a)(1). Hunter argues that the district court

unconstitutionally used his prior convictions, not alleged in the indictment or

submitted to the jury, to sentence him to a mandatory life sentence.

      Because Hunter objected to the use of his prior convictions to enhance his

sentence below, he has preserved this issue for appeal. United States v.

Candelario, 240 F.3d 1300, 1305 (11th Cir. 2001).

      The district court sentenced Hunter to a life sentence pursuant to §

841(b)(1)(a). Section 841(b) states that:

      In the case of a violation of subsection (a) of this section involving. .
      .(ii) . .50 grams or more of a mixture or substance described in clause
      (ii) [cocaine] which contains cocaine base [and]. . . .If any person
      commits a violation of this subparagraph. . .after two or more prior
      convictions for a felony drug offense have become final, such person
      shall be sentenced to a mandatory term of life imprisonment without
      release.

21 U.S.C. § 841(b)(1)(a).

      The Supreme Court has specifically held, in the context of using prior

convictions that were not alleged in the indictment, that “a State need not allege a

defendant's prior conviction in the indictment or information that alleges the

elements of an underlying crime, even though the conviction was ‘necessary to

bring the case within the statute.’” Almendarez-Torres v. United States, 523 U.S.



                                            2
224, 243, 118 S.Ct. 1219, 1231, 140 L.Ed.2d 350 (1998) (emphasis in original). In

Apprendi, the Supreme Court further confirmed the continuing validity of the

Almendarez-Torres holding, when it held that prior convictions were the exception

to the rule that any fact that increased a penalty had to be proved beyond a

reasonable doubt to a jury. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct.

2348, 2362-63, 147 L.Ed.2d 435 (2000). Therefore, the Supreme Court has

specifically exempted past convictions having to be alleged and proved when being

used by the government to increase a defendant’s penalty. The Court in Shepard

acknowledged that it had not yet reconsidered Almendarez-Torres. Shepard v.

United States, 544 U.S. 13, 27, 125 S.Ct. 1254, 1264, 161 L.Ed.2d 205 (2005).

      Further, we have previously rejected the argument that using unalleged past

convictions to enhance a penalty is unconstitutional or that Booker would prohibit

a district court from using prior convictions to enhance a sentence. See United

States v. Marseille, 377 F.3d 1249, 1257-58 (11th Cir.), cert. denied, 543 U.S.

1013 (2004)(citations omitted); United States v. Orduno-Mireles, 405 F.3d 960,

962 (11th Cir.), cert. denied, 126 S.Ct. 223 (2005). Additionally, “the district

court was, and still is, bound by the statutory minimums.” United States v.

Shelton, 400 F.3d 1325, 1333 n.10 (11th Cir. 2005).




                                          3
      In light of the current binding Supreme Court and Eleventh Circuit precedent

allowing the district court to use unalleged prior convictions to enhance sentences,

the district court did not act unconstitutionally by sentencing Hunter pursuant to a

statutory minimum. Accordingly, we affirm Hunter’s sentence.

      AFFIRMED.         1




      1
          Hunter’s request for oral argument is denied.

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