FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

December 23, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-12291

Non-Argument Calendar

________________________

D. C. Docket No. 04-20645-CR-CMA

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

STEVEN ALLEN ANTHONY, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(December 23, 2005)

Before CARNES, PRYOR and RONEY, Circuit Judges.

PER CURIAM:
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Steven Allen Anthony appeals his jury convictions and resulting sentences

for being a felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1) and 924(e),

and for possession of a controlled substance, 21 U.S.C. § 844. Anthony makes

two arguments: first, the district court abused its discretion in denying his motion

for a new trial after the government’s witness stated that Anthony had an

“extensive past” because this unsolicited testimony was prejudicial and tainted the

fundamental fairness of his trial; and second, this Court should certify the question

of whether the defendant’s prior convictions must be included in the indictment,

submitted to the jury, and proved beyond a reasonable doubt before a court can

use them to enhance a defendant’s sentence as an armed career criminal under 18

U.S.C. § 924(e). We affirm.

While on duty, two detectives apprehended Anthony a little after 4:00 a.m.

in Miami when they saw him running underneath an underpass with a gun in his

left hand. The detectives searched Anthony and found a semi-automatic Beretta

handgun in his waistband, as well as approximately $1,700 and four grams of

crack in his pockets.

At the trial, in response to questions from the government’s attorney during

direct examination, one of the detectives testified as follows:
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Q. Now, to pick up where we left off, after you

searched the defendant and found those items,

what did you and Detective Villaverde do next?

A. At that time we placed the defendant into our

vehicle and we proceeded towards the Dade

County Jail.

Q. Did you ultimately go there?

A. We went to the jail, and on the way to the jail I ran

the individual on our computer because we’re

equipped with computers in our vehicle. We

realized he had an extensive past.

When the Anthony’s attorney raised an appropriate objection to this last

comment, and after discussion with the attorneys, the district court eventually gave

the following curative instruction, “You heard the detective indicate they found

the defendant had a history with an extensive past. The parties have stipulated the

defendant is a convicted felon and you are to disregard any implication by the

detective’s statement there is anything more beyond that stipulation by the

parties.”

When a curative instruction has been given to address some improper and

prejudicial evidence, we will reverse only if the evidence is so highly prejudicial

as to be incurable by the trial court’s admonition. United States v. Harriston,

329 F.3d 779, 787 n.4 (11th Cir. 2003).

The district court did not abuse its discretion by denying Anthony’s motion

for a mistrial because the police detective’s comment about Anthony’s “extensive
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past” was not incurably prejudicial. The witness simply mentioned that

information incidentally while answering another question regarding the events

that had transpired after Anthony’s arrest. The district court provided an explicit

instruction to the jury to disregard the detective’s response and to consider only

the parties’ stipulation that Anthony was a convicted felon. See United States v.

Shenberg, 89 F.3d 1461, 1472 (11th Cir. 1996) (noting that we presume that the

jury follows the district court’s instructions).

The suggestion that we should certify a question to the United States

Supreme Court is based on Anthony’s argument that recent decisions such as 

Shepard v. United States, 544 U.S. __, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005),

has called into question the continuing validity of Almendarez-Torres v. United

States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).

In Almendarez-Torres, the Supreme Court held that “[a]n indictment must

set forth each element of the crime that it charges . . . [,b]ut it need not set forth

factors relevant only to the sentencing of an offender found guilty of the charged

crime.” 523 U.S. at 228, 118 S.Ct. at 1223. The Court clarified that the

government need not allege in its indictment and need not prove prior convictions

beyond a reasonable doubt to use those prior convictions in enhancing a sentence. 

See 523 U.S. at 228, 118 S.Ct. at 1223. Prior to the series of decisions relating to
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sentencing, – Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d

435 (1999) , United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 749-51, 160

L.Ed.2d 261 (2005), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531,

159 L.Ed.2d 403 (2004) – we held that Almendarez-Torres was good law. See

United States v. Marseille, 377 F.3d 1249, 1257 (11th Cir. 2004). After Booker,

we held that the Supreme Court’s decision in Almendarez-Torres “was left

undisturbed by Apprendi, Blakely, and Booker,” and that “a district court does not

err by relying on prior convictions to enhance a defendant’s sentence.” United

States v. Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005).

Defendant properly notes in his brief that this Court directly addressed the

argument that Shepard v. United States, 544 U.S. __, 125 S.Ct. 1254, 161 L.Ed.2d

205 (2005) “may arguably cast doubt on the future prospects of AlmendarezTorres’s holding regarding prior convictions” but then we held that “the Supreme

Court has not explicitly overruled Almendarez-Torres.” United States v.

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

(2005). As a result, we must follow Almendarez-Torres. See Hohn v. United

States, 524 U.S. 236, 252-3, 118 S.Ct. 1969, 1978, 141 L.Ed. 2d 242 (1998) (“Our

decisions remain binding precedent until we see fit to reconsider them, regardless

of whether subsequent cases have raised doubt about their continuing validity.”);
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Camacho-Ibarquen, 410 F.3d at 1315 (noting that “the government need not

allege in its indictment and need not prove beyond a reasonable doubt that a

defendant had prior convictions for a district court to use those convictions for

purposes of enhancing a sentence”). 

In United States v. Orduno-Mireles, 405 F.3d 960, 962-63 & n.3 (11th Cir.),

cert. denied, 126 S.Ct. 223 (2005), we reaffirmed that Shepard does not alter the

understanding that “because the prior-conviction exception remains undisturbed

after Booker, a district court does not err by relying on prior convictions to

enhance a defendant’s sentence.”

This precedent in this Circuit is binding on a panel of this Court and it

would be inappropriate for a panel of the Court to certify to the Supreme Court a

question that prior panels of the Court have clearly decided.

We note that Anthony’s judgment incorrectly states that he “pleaded guilty”

to both counts in his indictment. In fact, Anthony was found guilty by a jury of

both counts charged in the indictment following a trial.

We therefore modify the “Judgment in Criminal Case,” entered by the

district court on April 12, 2005, so as to eliminate the following sentence, “The

defendant pleaded guilty to Count(s) 1 and 2 of the Indictment.” The judgment and

Anthony’s convictions and sentences are nonetheless affirmed.

AFFIRMED AS MODIFIED.