              Case: 14-10223    Date Filed: 04/24/2015   Page: 1 of 7


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 14-10223
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 1:12-cr-00200-AT-JFK-6


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

KENNETH PORTER,
a.k.a. KP,
a.k.a. Kenneth Marcel Porter,

                                                             Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         ________________________

                                 (April 24, 2015)

Before HULL, ROSENBAUM and FAY, Circuit Judges.

PER CURIAM:
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       Kenneth Porter appeals his guilty plea and the constitutionality of his

enhanced sentence under the Armed Career Criminal Act (“ACCA”). 1 We affirm.

                                    I.      BACKGROUND

       A federal grand jury charged Porter and others in an eleven-count

superseding indictment. Porter was charged with (1) dealing in firearms without a

license, in violation of 18 U.S.C. § 922(a)(1)(A) (Count 1); (2) knowingly

possessing and selling a stolen firearm, in violation of 18 U.S.C. §§ 922(j) and

924(a)(2) (Count 9); being a felon in possession of a firearm, in violation of

§§ 922(g)(1) and 924(e) (Count 10); and possessing with intent to distribute

marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D) (Count 11). Porter

ultimately pled guilty to Counts 1, 9, and 10, without a plea agreement. Count 11

was dismissed.

       At Porter’s change-of-plea proceeding, the government summarized the

charges against him, proffered what it would prove if the case proceeded to trial,

and explained Porter could be subject to an ACCA-enhanced sentence as to Count

10, because he had several prior felony convictions for crimes involving drugs and

violence. After the government’s proffer, Porter explained to the district judge he

did not believe he was an armed-career criminal. The judge then asked defense


       1
          The ACCA applies and imposes a mandatory-minimum, 15-year sentence, where a
defendant convicted under 18 U.S.C. § 922(g) has three previous convictions for “a violent
felony or a serious drug offense, or both.” 18 U.S.C. § 924(e)(1).
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counsel to address the issue of the ACCA enhancement. Defense counsel

responded the ACCA’s application was an issue that should be argued during

sentencing. The judge asked Porter directly if he was comfortable reserving that

issue until the sentencing proceeding; he responded he was.

      During the change-of-plea proceeding, the government contended Porter was

an armed-career criminal as to Count 10 for possession of a firearm by a convicted

felon. Consequenly, the government explained Porter would be subject to a

mandatory-minimum-prison term of 15 years and a maximum-prison term of life.

If the judge found the ACCA applied, she explained she would be obligated to

impose a minimum 15-year-prison sentence; Porter stated he understood. Upon

inquiry, Porter stated he understood everything and did not need to discuss

anything further with the judge or his attorney.

      Porter’s presentence investigation report (“PSI”) stated the ACCA applied to

him. Porter objected to the application of the ACCA and argued his prior

convictions could not serve as the basis for an ACCA enhancement. At the

sentencing hearing, the judge overruled Porter’s objection and applied the ACCA,

because Porter’s prior convictions qualified as predicate offenses for ACCA

purposes. Based on Porter’s criminal history, ACCA status, and total-offense

level, his Sentencing Guidelines range was 210 to 262 months of imprisonment.




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Nevertheless, the judge concluded that a total sentence of 15 years of

imprisonment (180 months) was reasonable and sentenced him to that term.

                                   II.    DISCUSSION

A.    Invited Error

      On appeal, Porter argues his plea was not knowingly and intelligently made,

because, when he pled guilty, there was not yet a determination whether his prior

convictions would subject him to an ACCA-enhanced sentence. Where a party

induces or invites a district judge to make an error, the doctrine of invited error

applies, and we are precluded from reviewing that error on appeal. United States v.

Harris, 443 F.3d 822, 823-24 (11th Cir. 2006). In Harris, the parties jointly

recommended an 80-month sentence. Id. at 823. The district judge asked the

defendant if he was waiving his right to a PSI, and he answered affirmatively. Id.

The judge accepted the recommended sentence. Id. On appeal, the defendant

argued he did not waive his right to a PSI, and the judge improperly sentenced him

without one. Id. We noted the district judge failed to satisfy Fed. R. Crim. P.

32(c)(1)(A)(ii) by failing to find the information in the record enabled a

meaningful exercise of sentencing authority. Nonetheless, we determined the

doctrine of invited error applied, because the defendant affirmatively waived the

PSI and, consequently, induced any error that may have arisen. Id. at 824.




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      The doctrine of invited error precludes Porter from raising this issue on

appeal, because he induced any error the district judge allegedly committed. See

id. at 823-24. At the plea colloquy, the judge asked Porter’s attorney to address the

issue of his armed-career-criminal status; defense counsel responded it was an

issue to be addressed at sentencing. The district judge then asked Porter directly if

he was comfortable reserving the issue for sentencing; Porter stated he was. Like

the defendant in Harris, who invited any Rule 32(c)(1)(A)(ii) error by

affirmatively waiving a PSI, Porter invited any error by asking the court to accept

his guilty plea and resolve the ACCA issue at sentencing. Id.

B.    Constitutional Conviction

      Porter argues for the first time on appeal the ACCA, 18 U.S.C. § 924(e),

violates the Fifth and Sixth Amendments of the United States Constitution,

because it allows for the imposition of mandatory-minimum sentences, based upon

alleged prior convictions not included in the indictment, admitted by the defendant,

or proved beyond a reasonable doubt. Porter acknowledges the Supreme Court

case of Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998),

where the Court recognized that prior convictions need not be charged in an

indictment or proven beyond a reasonable doubt. Nevertheless, he argues

Almendarez-Torres is inconsistent with the more recent opinion in Alleyne v.

United States, 564 U.S. ___, ___, 133 S. Ct. 2151 (2013), under which facts that


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increase the minimum penalty of an offense were held to be elements of the

offense that must be decided by a jury.

      We normally review constitutional sentencing issues de novo; however, we

review for plain error, where a defendant fails to raise an objection before the

district judge at sentencing. United States v. Harris, 741 F.3d 1245, 1248 (11th

Cir. 2014). The Supreme Court in Alleyne was careful to note that its holding did

not disturb the rule in Almendarez-Torres that prior convictions need not be

submitted to a jury. See Alleyne, 564 U.S. at ___, 133 S. Ct. at 2160 n.1. We

additionally have held that it is constitutionally permissible for a district judge to

enhance a defendant’s sentence and impose a mandatory-minimum sentence, based

on prior convictions that were not found by the jury. See United States v. Smith,

775 F.3d 1262, 1266 (11th Cir. 2014) (“Alleyne did not overrule

Almendarez-Torres, and the Fifth and Sixth Amendments do not limit the use of

[the defendant’s] prior convictions.”); Harris, 741 F.3d at 1249. In Harris, we

addressed the issue directly:

             As this discussion indicates, Alleyne did not address the
             specific question at issue in this case, which is whether a
             sentence can be increased because of prior convictions
             without a jury finding the fact of those convictions. That
             question continues to be governed by Almendarez–Torres
             . . . where the [Supreme] Court determined that the fact
             of a prior conviction is not an ‘element’ that must be
             found by a jury. Indeed, the Alleyne Court specifically
             recognized that, under Almendarez–Torres, prior
             convictions are excepted from the general rule that a jury
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             must find any fact that will increase the penalty for an
             offense.

Harris, 741 F.3d at 1249.

      Porter’s argument regarding this issue is foreclosed by Supreme Court and

circuit precedent. He does not dispute on appeal the fact of his prior convictions or

that they could have served as predicate felonies for an ACCA enhancement.

Instead, he argues Almendarez-Torres is inconsistent with the Court’s more recent

Alleyne decision, which is a misreading of Alleyne. In Alleyne, the Court explicitly

stated its decision did not disturb the “narrow exception . . . for the fact of a prior

conviction,” recognized in Almendarez-Torres to the “general rule” that “facts that

increase the prescribed range of penalties to which a criminal defendant is exposed

are elements of the crime” that must be proved to a jury. See Alleyne, 564 U.S.

___, 133 S. Ct. at 2160 & n.1 (quotation omitted); see also Harris, 741 F.3d at

1249. Contrary to Porter’s argument, Alleyne and Almendarez-Torres are

consistent. He has failed to show § 924(e) is unconstitutional by allowing a district

judge to impose a mandatory-minimum sentence by relying on prior convictions

he did not admit and the government did not prove beyond a reasonable doubt. See

Smith, 775 F.3d at 1266. Therefore, we affirm his conviction and sentence.

      AFFIRMED.




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