### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 10256 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. JAMES LEWIS , Defendant

- Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:13

- CR

- 177

- 1

Before STEWART, Chief Judge, and ELROD and HIGGINSON, Circuit Judges. PER CURIAM: * James Lewis was convicted of one count of possession of a firearm by a convicted felon and one count of possession with intent to distribute cocaine base . He was sentenced to a total of 210 months of imprisonment and thr ee years of supervised release

.

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED December 15, 2014 Lyle W. Cayce Clerk Case: 14-10256 Document: 00512870107 Page: 1 Date Filed: 12/15/2014No. 14

- 10256

Le wis argues that the district court ’s application of U.S.S.G. § 4B1.1 was the result of judicial factfinding that violated the Fifth and Sixth Amendments. He asserts that the career

- offender provision in effect establishes a mandatory minimum sentence and , under Alleyne v. United States , 133 S. Ct. 2151 (2013), the facts supporting his career

- offender status must be found by a jury beyond a reasonable doubt. We review his arguments de novo. See United States v. Hernandez , 633 F.3d 370, 373 (5th Cir. 2011 ). In Alleyne , the Supreme Court concluded that any fact that increases a defendant’s statutory minimum sentence must be found beyond a reasonable doubt by a jury. 133 S. Ct. at 21 63

. Here , neither offense of conviction exposed Lewis to a mandatory minimum sentence , see 18 U.S.C. § 924(a)(2) ; 21 U.S.C. § 841(b)(1)(C), and no statutory minimum was applicable because of the career offender enhancement. The district court properly exercised its a uthority to find facts that affect the guidelines range and to exercise its sentencing discretion ; thus, Alleyne is inapplicable

. See Alleyne , 133 S. Ct. at 2163; United States v. Tuma , 738 F.3d 681, 693 (5th Cir. 2013), cert. denied , 134 S. Ct. 2875 (2014)

. Also, the status of Lewis as a career offender does not involve a finding other than the fact of a prior conviction and, therefore, the narrow exception set forth in Almendarez

- Torres v. United States , 523 U.S. 224, 239

- 47 (1998), applies. See United States v. Wallace , 759 F.3d 486, 4 97 (5th Cir. 2014 ); United States v. Guevara , 408 F.3d 252, 261 (5th Cir. 2005). Lewis also argues that the district court erred in enhancing h is sentence under § 4 B1.1 because his Texas offense of possession with intent to deliver is not a controlled su bstance offense. He concedes that his argument is foreclosed by United States v. Ford , 509 F.3d 714, 717 (5th Cir. 2007), but he argues that Ford was wrongly decided. We may not overrule the decision of a prior panel

2 Case: 14-10256 Document: 00512870107 Page: 2 Date Filed: 12/15/2014No. 14

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in the absence of en banc decision or a supe rseding Supreme Court decision. See United States v. Lipscomb , 299 F.3d 303, 3 13 & n. 34 (5th Cir. 2002). AFFIRMED.

3 Case: 14-10256 Document: 00512870107 Page: 3 Date Filed: 12/15/2014