United States v. Barbosa, Vito

175 F. App'x 30

• Court: Court of Appeals for the Seventh Circuit
• Decided: March 29, 2006
• Docket: 05-3124
• Status: Unpublished

Opinion

ORDER

Vito Barbosa was indicted for possession of a firearm by a felon. See 18 U.S.C. § 922(g)(1). He pleaded guilty, and the probation officer who prepared the presentence investigation report recommended that Barbosa be sentenced to a minimum term of 180 months’ imprisonment under the Armed Career Criminal Act because of his multiple prior convictions. See id. § 924(e)(1). During the plea colloquy, Barbosa would not concede his status as an armed career criminal. The district court nonetheless found at sentencing that Barbosa had two prior convictions for burglary of a building, which is a violent felony, and another conviction for possession with intent to distribute cocaine, which is a serious drug offense. See id. § 924(e)(2). Accordingly, the court sentenced Barbosa to 180 months’ imprisonment.

Barbosa’s only argument on appeal is that the Sixth Amendment was violated because his prior convictions were not proved to a jury beyond a reasonable doubt. He admits that Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), rejects this argument, but he contends that in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), the Supreme Court “eroded” AlmendarezTorres to the point that it no longer is good law. But Almendarez-Torres has not been overruled, and it is for the Supreme Court, not us, to decide when or if it will be. See Shepard, 125 S.Ct. at 1262-63 (plurality opinion); id. at 1269-70 (O’Connor, J., dissenting); see also United States v. Browning, 436 F.3d 780, 782 (7th Cir.2006); United States v. Williams, 410 F.3d 397, 402 (7th Cir.2005); United States v. Ngo, 406 F.3d 839, 842 (7th Cir.2005). Barbosa’s counsel makes this argument solely to preserve it for presentation to the Supreme Court, and he has now done so.

AFFIRMED.