United States v. James Lewis

587 F. App'x 223

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 15, 2014
• Docket: 14-10256
• Status: Unpublished

Opinion

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.

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, — U.S. -, 133 S.Ct. 2151, 186 L.Ed.2d 314 (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 career-offender 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, — U.S. -, 134 S.Ct. 2875, 189 L.Ed.2d 835 (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, 118 S.Ct. 1219, 140 L.Ed.2d 350 (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 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.

* 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.