                                                         [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT         FILED
                      ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                            July 21, 2005
                             No. 05-10381
                                                         THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                    D.C. Docket No. 04-80090-CR-WJZ

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

     versus

GREGORY EUGENE JONES,

                                                     Defendant-Appellant.

                      __________________________

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

                      _________________________

                              (July 21, 2005)

Before BIRCH, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:
      Appellant Gregory Eugene Jones appeals his 180-month sentence imposed

after pleading guilty to one count of possession of ammunition that has traveled in

interstate commerce, after having been previously convicted of a crime punishable

by imprisonment for a term exceeding 1 year, in violation of 18 U.S.C. §

922(g)(1). The district court imposed the mandatory minimum sentence pursuant

to the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), based upon Jones’s

admissions that he had committed three prior qualifying felonies.

      On appeal, Jones argues that his mandatory minimum sentence violates the

Fifth Amendment because it was based upon prior convictions that were not

charged in the indictment and because he never admitted that his prior convictions

were for crimes of violence or serious drug offenses. He argues that the

commission of the three prior crimes of violence or serious drug offenses was a

necessary element of the crime charged pursuant to the Armed Career Criminal

Act, 18 U.S.C. § 924(e). Although Jones recognizes that the United States

Supreme Court in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct.

1219, 140 L. Ed. 2d 350 (1998), rejected this type of argument, and that this is the

controlling precedent, he asserts that the Supreme Court’s subsequent opinions in

Apprendi v. New Jersey, 530 U.S. 466, 489-90, 120 S. Ct. 2348, 2362-63, 147 L.

Ed. 2d 435 (2000), Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531, 159 L.

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Ed. 2d 403 (2004), and Shepard v. United States ___ U.S. ___, 125 S. Ct. 1254,

161 L. Ed. 2d 205 (2005), undermine the rationale of this opinion, and that today,

the majority of the Supreme Court no longer subscribes to its previous holding on

this issue.

        Since Jones preserved his constitutional claim in the district court, we

review his sentence de novo, but will reverse only for harmful error. United States

v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).

       In Almendarez-Torres v. United States, the Supreme Court held that the

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. Almendarez-Torres, 523

U.S. at 228; 118 S. Ct. at 1223. In Apprendi, the Supreme Court declined to

revisit Almendarez-Torres, and 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.” Apprendi, 530 U.S. at 489-90, 120 S. Ct. at 2362-63. See also United

States v. Thomas, 242 F.3d 1028, 1035 (11th Cir. 2001) (observing that Apprendi

specifically excluded the fact of a prior conviction from its holding and affirming

18 U.S.C. § 924(e)(1)-enhanced sentence, pursuant to Almendarez-Torres).

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      The Supreme Court in Harris v. United States, 536 U.S. 545, 122 S. Ct.

2406, 153 L. Ed. 2d 524 (2002), dealt with the application of Apprendi to a statute

increasing the mandatory minimum sentence based on facts neither charged in the

indictment nor proved to a jury beyond a reasonable doubt. In Harris, the

defendant was convicted of violating the federal drug and firearms laws, which

included a provision that anyone who brandished a weapon during his crime was

to be sentenced to a mandatory minimum 7 years’ imprisonment. Harris, 536 U.S.

at 550-51, 122 S. Ct. at 2410-11; see 18 U.S.C. § 924(c)(1)(A). The indictment

said nothing about brandishing a weapon and did not reference this statute;

however, the defendant was sentenced to the mandatory minimum sentence based

on the sentencing judge’s finding by a preponderance of the evidence that the

defendant brandished a weapon. Harris, 536 U.S. at 551, 122 S. Ct. at 2411.

      When discussing the effect of the Apprendi rule on the factual findings

made by the sentencing judge, the Supreme Court held that there was a

fundamental difference between factual findings used to extend the defendant’s

sentence beyond the statutory maximum, and those used to increase the mandatory

minimum (but not extending the sentence beyond the statutory maximum), holding

that a statute may reserve the latter factual finding for the judge, without violating

the Constitution. Harris, 536 U.S. at 566, 122 S. Ct. at 2419 (“it is beyond dispute

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that the judge’s choice of sentences within the authorized range may be influenced

by facts not considered by the jury”).

      The Supreme Court revisited the Apprendi rule in Blakely v. Washington, in

the context of Washington state’s sentencing guideline scheme, and clarified that

“the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge

may impose solely on the basis of the facts reflected in the jury verdict or admitted

by the defendant.” Blakely, 542 U.S. at ___, 124 S. Ct. at 2534-2538.

      In its recent Booker decision, the Supreme Court again reaffirmed its

holding first pronounced in Apprendi, holding that “[a]ny fact (other than a prior

conviction), which is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable doubt.” United

States v. Booker, 543 U.S. at ___, 125 S. Ct 738, 756, 160 L. Ed. 2d 621 (2005).

“The reason for the exception for prior convictions is clear: ‘a prior conviction

must itself have been established through procedures satisfying the fair notice,

reasonable doubt, and jury trial guarantees.’” United States v. Orduno-Mireles,

405 F.3d 960, 962 (11th Cir. 2005) (quoting Jones v. United States, 526 U.S. 227,

249, 119 S. Ct. 1215, 1227, 143 L. Ed. 2d 311 (1999)).




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      Because in Jones’s case, like in Harris, the application of the armed career

criminal provision merely triggered a mandatory minimum sentence, and did not

act to increase Jones’s sentence beyond the statutory maximum, we conclude no

constitutional violation occurred when the judge imposed a mandatory minimum

sentence based upon prior convictions that were not alleged in the indictment.

Accordingly, we affirm Jones’s sentence.

      AFFIRMED.




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