FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

October 22, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-11133

Non-Argument Calendar

________________________

D. C. Docket No. 07-00046-CR-J-32TEM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BURL MARC DEES,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(October 22, 2008)

Before ANDERSON, BIRCH and HULL, Circuit Judges.

PER CURIAM:

Burl Marc Dees appeals the district court’s decision to impose an armed
career criminal sentence enhancement based on his prior convictions. The district

court correctly applied existing law in sentencing Dees. Accordingly, we

AFFIRM.

I. BACKGROUND

On 2 October 2007, Dees entered a plea of guilty to one count of possession

of ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1). During

the sentencing phase, the Middle District of Florida determined that he had more

than three prior violent felony convictions, thus making him an armed career

criminal under the Armed Career Criminal Act, 18 U.S.C. § 924(e). This

conclusion resulted in his final offense level being raised from 25 to 30. Dees

objected to the armed career criminal classification as a violation of his right to

have all relevant issues, including proof of prior convictions, determined by a jury.

The district court overruled his objection and sentenced him to 163 months and 17

days, the statutory minimum sentence less time served for a related offense. On

appeal, Dees repeats his objection, arguing that his sentence violates the Sixth

Amendment because the prior convictions supporting his sentence enhancement

were neither admitted by him nor proven to a jury.

II. DISCUSSION

We review de novo questions concerning the constitutionality of an

2
enhanced sentence. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). “We

will reverse the district court only if any error was harmful.” Id.

The Supreme Court has held that the government need not prove beyond a

reasonable doubt that a defendant had prior convictions or allege those prior

convictions in its indictment in order to use those convictions to enhance a

defendant’s sentence under the Guidelines. See Almendarez-Torres v. United

States, 523 U.S. 224, 226–27, 118 S. Ct. 1219, 1222 (1998). Dees notes that

members of the Supreme Court have questioned the rationale behind this principle.

See Shepard v. United States, 544 U.S. 13, 26–27, 125 S. Ct. 1254, 1263–64

(2005) (Thomas, J., concurring). However, the Court has so far declined to

overrule the precedent. See Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct.

2531, 2536 (finding fact of a prior conviction to be exception to general

requirement of jury submission for facts increasing penalty beyond statutory

maximum). Accordingly, we are “bound by Almendarez-Torres until it is

explicitly overruled by the Supreme Court.” United States v. Dowd, 451 F.3d

1244, 1253 (11th Cir. 2006).

Based on this controlling precedent, the district court properly overruled

Dees’s objection. Dees concedes as much, noting that he primarily is bringing his

appeal to preserve the issue in case the Supreme Court decides to overrule

3
Almendarez-Torres. Upon review of the record and the parties’ briefs, we thus

discern no reversible error by the district court in its sentencing of Dees.

III. CONCLUSION

Dees appeals the district court’s sentencing based on prior convictions that

had not been proven to a jury or otherwise admitted by him. Since Supreme Court

and our own precedent hold that prior convictions need not be proven to a jury nor

admitted by the defendant to enhance a sentence, Dees’s argument is without merit.

We therefore affirm the district court’s sentence.

AFFIRMED.

4