United States v. Timothy D. Still

161 F. App'x 628

• Court: Court of Appeals for the Eighth Circuit
• Decided: January 13, 2006
• Docket: 04-3974
• Status: Unpublished

Opinion

PER CURIAM.

Timothy D. Still pleaded guilty to being a felon in possession of a firearm. After the Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), but before the Court decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court * sentenced Still to sixty months in prison and two years of supervised release. Still appeals.

Acknowledging our contrary case law, see United States v. Nolan, 397 F.3d 665, 666-67 (8th Cir.2005), Still first argues the district court committed error in classifying his earlier conviction for burglarizing a commercial building as a crime of violence. We must follow our earlier holdings foreclosing Still’s argument, however, and only the court en banc can overrule them. United States v. Purkey, 428 F.3d 738, 762-63 (8th Cir.2005).

Still also asserts the Sixth Amendment requires that his earlier conviction be proved to a jury beyond a reasonable doubt. We have recognized that even after Booker, the fact of an earlier conviction is for the court, not a jury. Nolan, 397 F.3d at 667 n. 2; United States v. Cerna-Salguero, 399 F.3d 887, 887-88 (8th Cir.2005); see Apprendi v. New Jersey, 530 U.S. 466, 489-90, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Booker, 125 S.Ct. at 756.

We thus affirm Still’s sentence.

* The Honorable Henry E. Autrey, United States District Judge for the Eastern District of Missouri.