FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APR 30, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-12617

Non-Argument Calendar

________________________

D. C. Docket No. 05-80125-CR-DMM

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

JAMES WALKER, 

a.k.a. Keith Taylor, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(April 30, 2007)

Before BIRCH, BLACK and WILSON, Circuit Judges.

PER CURIAM:
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James Walker appeals his sentence imposed after he pled guilty to

knowingly and intentionally distributing crack cocaine, in violation of 21 U.S.C.

§ 841(a)(1). Walker contends the district court erred when it classified him as a

career offender because his prior conviction for battery on a law enforcement

officer is not a crime of violence as defined by U.S.S.G. § 4B1.2(a). Walker

further asserts his prior conviction for battery on a law enforcement officer should

not be used to enhance his sentence since the prior conviction was not proven to a

jury beyond a reasonable doubt nor admitted by him in his plea. The district court

did not err, and we affirm.

I. DISCUSSION

A. Crime of Violence 

Walker asserts his prior conviction for battery on a law enforcement officer

does not necessarily involve the use or threat of use of physical force, and,

consequently, the offense cannot be used to classify him as a career offender. He

contends his case is analogous to Shepard v. United States, 125 S. Ct. 1254 (2005),

as battery is defined more broadly in Florida than the definition of a “crime of

violence” under U.S.S.G. § 4B1.2(a). Walker argues that in light of Shepard, the

district court erred by not examining the statutory definition of battery under
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Florida law to determine whether it in fact constitutes a crime of violence under the

Sentencing Guidelines. 

We have previously held that battery on a law enforcement officer under

Florida law is a crime of violence. United States v. Glover, 431 F.3d 744, 749

(11th Cir. 2005). In Shepard, the Supreme Court limited the types of evidence a

district court can constitutionally consider to determine whether a prior burglary

conviction qualifies as a violent felony for purposes of the ACCA where the

statutory definition of burglary includes both violent and non-violent conduct. 

Shepard, 125 S. Ct. at 1263. 

We have directly addressed this issue, and the district court did not err in

finding battery on a law enforcement officer under Florida law is a crime of

violence. Contrary to Walker’s contentions, Shepard does not alter this

conclusion, as it merely limited the types of evidence a district court may consider

in determining the nature of a prior conviction. Unlike in Shepard, the district

court in this case had to look no further than the fact of conviction to determine

Walker was a career offender. Further, to the extent Walker argues we should

overrule our prior decision, this argument is without merit. See Swann v. Southern

Health Partners, Inc., 388 F.3d 834, 837 (11th Cir. 2004) (“Under the prior panel

rule, [a panel of this Court is] bound by the holdings of earlier panels unless and
 United States v. Booker, 125 S. Ct. 738 (2005). 1

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until they clearly overturned en banc or by the Supreme Court.” ). The district

court did not err in finding Walker’s prior conviction qualified as a crime of

violence for purposes of classifying him as a career offender.

B. Enhancement Based on Prior Conviction 

Walker also argues his prior conviction for battery on a law enforcement

officer should not be used as a predicate offense for career offender purposes since

the prior conviction was not proven to a jury beyond a reasonable doubt nor

admitted by him in his plea. Walker acknowledges the binding precedent of

Almendarez-Torres v. United States, 118 S. Ct. 1219 (1998), but contends that

Shepard, as recognized by recent decisions of this Court, has cast doubt on the

validity of Almendarez-Torres and has limited the use of prior convictions to

enhance a defendant’s sentence.

In Almendarez-Torres, the Supreme Court held a defendant’s prior

conviction does not have to be alleged in the indictment or submitted to a jury and

proved beyond a reasonable doubt. Almendarez-Torres, 118 S. Ct. 1219, 1222

(1998). We have held nothing in Booker disturbed the Supreme Court’s holding 1

in Almendarez-Torres. See United States v. Gibson, 434 F.3d 1234, 1244-47 (11th

Cir. 2006). Additionally, since Shepard, we have consistently held Almendarez-
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Torres remains good law “until the Supreme Court determines that AlmendarezTorres is not controlling precedent.” United States v. Orduno-Mireles, 405 F.3d

960, 963 (11th Cir.), cert. denied, 126 S. Ct. 233 (2005); see also United States v.

Camacho-Ibarquen, 410 F.3d 1307, 1316 n.3 (11th Cir.), cert. denied, 126 S. Ct.

457 (2005) (“Although recent decisions, including Shepard . . . , may arguably cast

doubt on the future prospects of Almendarez-Torres’s holding regarding prior

convictions, the Supreme Court has not explicitly overruled Almendarez-Torres. 

As a result, we must follow Almendarez-Torres.”). Further, we have held that after

Shepard, district courts may determine both the existence and nature of a

conviction, as “[t]here is implicit in the Shepard rule . . . a recognition that if the

nature of the prior conviction can be determined from [the statutory definition,

charging document, written plea agreement, transcript of plea colloquy, or jury

instructions], under existing law the trial judge may make the determination.” 

United States v. Greer, 440 F.3d 1267, 1275 (11th Cir. 2006).

The district court did not err by enhancing Walker’s sentence based on his

prior conviction. We have decided this question previously and expressly held

Almendarez-Torres remains good law. Also, Walker’s contention the finding

regarding his prior conviction for battery on a law enforcement officer violated
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Shepard is without merit. The sentencing judge continues to make this

determination, and is only limited in the evidence he may use to make this finding.

II. CONCLUSION

The district court did not err in determining battery on a law enforcement

officer is a crime of violence or in enhancing Walker’s sentence based on his prior

conviction. Accordingly, we affirm.

AFFIRMED.