FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

June 9, 2006

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-13321

Non-Argument Calendar

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D.C. Docket No. 04-80113-CR-DMM

UNITED STATES OF AMERICA,

 

Plaintiff-Appellee, 

versus

ERIC D. CLARK,

 Defendant-Appellant. 

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Appeal from the United States District Court

for the Southern District of Florida 

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(June 9, 2006)

Before EDMONDSON, Chief Judge, CARNES and PRYOR, Circuit Judges.

PER CURIAM:
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Defendant-Appellant Eric Clark appeals the 300-month sentence imposed

upon his conviction for possession of a firearm by a convicted felon, in violation

of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(e). No reversible error has been

shown; we affirm.

The district court sentenced Clark under the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e). Section 924(e) prescribes the penalty for a

defendant who is convicted under 18 U.S.C. § 922(g)(1) of being a felon

unlawfully in possession of a firearm and who has three earlier convictions for a

violent felony or a serious drug offense. Section 924(e)(1) prescribes a minimum

sentence of not less than fifteen years; the authorized statutory maximum is life

imprisonment. See United States v. Brame, 997 F.2d 1426, 1428 (11 Cir. 1993) th

(concluding that the “offense statutory maximum” under the ACCA, 18 U.S.C. §

924(e) is life imprisonment). According to the PSI, Clark had four separate

Florida convictions for either sale of cocaine or possession with intent to

distribute. Because Clark had three or more convictions for serious drug offenses,

he was subject to an ACCA section 924(e) enhancement; U.S.S.G. § 4B1.4 applied

to the calculation of his offense level. 

Clark objected at sentencing to the ACCA enhancement: he made a

constitutional challenge to application of the enhancement without a jury finding
3

on the prior convictions used to support the enhancement. Clark argued that the

continued validity of Almendarez-Torres v. United States, 118 S.Ct. 1219 (1998),

had been undermined by Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), and its

progeny. In Almendarez-Torres, the Supreme Court rejected the argument that

recidivism must be treated as an element of an offense; a sentencing court could

use prior convictions for sentencing enhancement purposes. Id. The district court

implicitly rejected Clark’s Almendarez-Torres argument, applied the enhancement

and stated that absent the ACCA enhancement the court would have departed

upward given Clark’s criminal history. 

On appeal, Clark once again maintains that considerable doubt exists about

the continued validity of Almendarez-Torres. Clark maintains that the maximum

statutory sentence for a section 922(g) violation without the enhancement is 10

years; his 300-month sentence far exceeds this maximum. Clark concedes,

however, that his sentence is without reversible error if Almendarez-Torres

remains good law. And Clark acknowledges that we have held that AlmendarezTorres remains binding law, but he advances his claim so that the issue may be

preserved for subsequent review.

We have rejected on many occasions arguments that Almendarez-Torres has

been, in effect, overruled by later Supreme Court decisions. See United States v.
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Greer, 440 F.3d 1267, 1273-75 (11 Cir. 2006) (reviewing decisions postth

Apprendi and its progeny that affirmed the continuing validity of AlmendarezTorres). And though we have noted that recent Supreme Court decisions “may

arguably cast doubt on the future prospects of Almendarez-Torres’s holding

regarding prior convictions,” United States v. Camacho-Ibarquen, 410 F.3d 1307,

1316 n. 3 (11 Cir. 2005), cert. denied, 126 S.Ct. 457 (2005), we have stated th

repeatedly that “unless and until the Supreme Court specifically overrules

Almendarez-Torres, we will continue to follow it.” Greer, 440 F.3d at 1273.

The Supreme Court has issued no decision overruling specifically

Almendarez-Torres; it remains binding precedent. The district court did not err in

using Clark’s prior convictions to enhance his sentence under the ACCA.

AFFIRMED.