Opinion
No. 06-2355.
Submitted Under Third Circuit LAR 34.1(a) May 6, 2008.
Filed: May 28, 2008.
Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Crim. No. 03-cr-00682), District Judge: The Honorable Petrese B. Tucker.
Michelle T. Rotella, Office of United States Attorney, Philadelphia, PA, for Appellee.
David L. McColgin, Defender Association of Philadelphia, Federal Court Division, Philadelphia, PA, for Appellant.
Before: SCIRICA, Chief Judge, BARRY and HARDIMAN, Circuit Judges.
OPINION
Appellant Randall Austin appeals the District Court's imposition of a 240-month term of imprisonment following his conviction for possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). The District Court imposed the sentence after finding that the government had proven by a preponderance of the evidence that the criteria for application of the Armed Career Criminal ("ACC") enhancement of 18 U.S.C. § 924(e) to Austin had been satisfied. Had the District Court not applied the ACC enhancement, Austin would have faced a statutory maximum sentence of 120 months in prison.
Austin raises a single issue on appeal, namely whether the government's failure to charge all of the ACC predicate offenses in the indictment and to prove them to a jury beyond a reasonable doubt violated his Fifth and Sixth Amendment rights. This argument is clearly foreclosed by the Supreme Court's decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). See United States v. Vargas, 477 F.3d 94, 105 (3d Cir. 2007) (declaring that Almendarez-Torres "continues to bind our decisions"); United States v. Coleman, 451 F.3d 154, 161 (3d Cir. 2006) (stating that " Almendarez-Torres remains good law"); United States v. Ordaz, 398 F.3d 236, 241 (3d Cir. 2005) (noting that "[t]he holding in Almendarez-Torres remains binding law"). We will affirm.