*

 After an examination of the briefs and the record, we have concluded that

oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the

record. See Fed. R. App. P. 34(a)(2).

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted March 9, 2006*

Decided March 13, 2006

Before

Hon. DANIEL A. MANION, Circuit Judge

 Hon. ILANA DIAMOND ROVNER, Circuit Judge

 Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 05-4194

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHN McCRAY, JR.,

Defendant-Appellant.

Appeal from the United States District

Court for the Southern District of Illinois

No. 3:05CR30027

David R. Herndon, 

Judge.

O R D E R

A grand jury charged John McCray, Jr., with conspiring to possess and

distribute heroin and crack cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1);

maintaining a residence for the purpose of distributing heroin and crack in violation

of 21 U.S.C. § 856(a)(1); and four counts of distributing crack or heroin in violation

of 21 U.S.C. § 841(a)(1). McCray pleaded guilty to all seven counts. Before

sentencing the government filed an enhancement information seeking an increase

in the mandatory minimum for McCray’s conspiracy count from 10 to 20 years

based on his prior conviction for conspiracy to distribute heroin. See 21 U.S.C.

§§ 841(b)(1)(A)(iii), 851. Although McCray admitted the prior conviction, he

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 05-4194 Page 2

objected that its use for enhancement violated his Fifth Amendment right to grand

jury presentment because it was not included in the indictment. After overruling

McCray’s objection, the district court sentenced him to 20 years’ imprisonment on

each count to run concurrently.

On appeal McCray renews his argument that his sentence on the conspiracy

count (and by implication, the remaining counts) violated his Fifth Amendment

right to indictment by grand jury because the prior conviction used to increase the

statutory minimum was not alleged in the indictment. McCray acknowledges,

however, that he raises this issue strictly to preserve it for further review because

he recognizes that current Supreme Court precedent precludes this court from

issuing a decision in his favor. See Harris v. United States, 536 U.S. 545, 568 (2002)

(explaining that it is constitutionally permissible for a sentencing judge to make

findings of fact that lead to imposition of enhanced mandatory minimum sentence);

Almendarez-Torres v. United States, 523 U.S. 224, 239, 243-44 (1998) (holding that

prior convictions need not be charged in indictment or proved to jury beyond a

reasonable doubt). Indeed, the viability of Supreme Court precedent is not for us to

decide. See De Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)

(explaining that circuit courts must follow controlling precedent and leave to

Supreme Court to decide whether to overturn its decisions); United States v.

Browning, – F.3d –, 2006 WL 266508, at *2 (7th Cir. 2006) (stating that

Almendarez-Torres remains binding precedent); United States v. Williams, 410 F.3d

397, 402 (7th Cir. 2005) (noting that Court has yet to overrule Almendarez-Torres).

AFFIRMED.