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 three 

years of supervised release.

* Pursuant to 5TH CIR. 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 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 15, 2014

Lyle W. Cayce

Clerk

 

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No. 14-10256

Lewis 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 2163. 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 careeroffender enhancement. The district court properly exercised its authority 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, 497 (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 his sentence 

under § 4B1.1 because his Texas offense of possession with intent to deliver is 

not a controlled substance 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 

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No. 14-10256

in the absence of en banc decision or a superseding Supreme Court decision. 

See United States v. Lipscomb, 299 F.3d 303, 313 & n.34 (5th Cir. 2002).

AFFIRMED.

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