USA v. Burl Marc Dees, No. 08-11133 (11th Cir. 2008)

Annotate this Case
Download PDF
[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 08-11133 Non-Argument Calendar ________________________ FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT October 22, 2008 THOMAS K. KAHN CLERK D. C. Docket No. 07-00046-CR-J-32TEM UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BURL MARC DEES, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Florida _________________________ (October 22, 2008) Before ANDERSON, BIRCH and HULL, Circuit Judges. PER CURIAM: Burl Marc Dees appeals the district court s decision to impose an armed career criminal sentence enhancement based on his prior convictions. The district court correctly applied existing law in sentencing Dees. Accordingly, we AFFIRM. I. BACKGROUND On 2 October 2007, Dees entered a plea of guilty to one count of possession of ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1). During the sentencing phase, the Middle District of Florida determined that he had more than three prior violent felony convictions, thus making him an armed career criminal under the Armed Career Criminal Act, 18 U.S.C. § 924(e). This conclusion resulted in his final offense level being raised from 25 to 30. Dees objected to the armed career criminal classification as a violation of his right to have all relevant issues, including proof of prior convictions, determined by a jury. The district court overruled his objection and sentenced him to 163 months and 17 days, the statutory minimum sentence less time served for a related offense. On appeal, Dees repeats his objection, arguing that his sentence violates the Sixth Amendment because the prior convictions supporting his sentence enhancement were neither admitted by him nor proven to a jury. II. DISCUSSION We review de novo questions concerning the constitutionality of an 2 enhanced sentence. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). We will reverse the district court only if any error was harmful. Id. The Supreme Court has held that the government need not prove beyond a reasonable doubt that a defendant had prior convictions or allege those prior convictions in its indictment in order to use those convictions to enhance a defendant s sentence under the Guidelines. See Almendarez-Torres v. United States, 523 U.S. 224, 226 27, 118 S. Ct. 1219, 1222 (1998). Dees notes that members of the Supreme Court have questioned the rationale behind this principle. See Shepard v. United States, 544 U.S. 13, 26 27, 125 S. Ct. 1254, 1263 64 (2005) (Thomas, J., concurring). However, the Court has so far declined to overrule the precedent. See Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 2536 (finding fact of a prior conviction to be exception to general requirement of jury submission for facts increasing penalty beyond statutory maximum). Accordingly, we are bound by Almendarez-Torres until it is explicitly overruled by the Supreme Court. United States v. Dowd, 451 F.3d 1244, 1253 (11th Cir. 2006). Based on this controlling precedent, the district court properly overruled Dees s objection. Dees concedes as much, noting that he primarily is bringing his appeal to preserve the issue in case the Supreme Court decides to overrule 3 Almendarez-Torres. Upon review of the record and the parties briefs, we thus discern no reversible error by the district court in its sentencing of Dees. III. CONCLUSION Dees appeals the district court s sentencing based on prior convictions that had not been proven to a jury or otherwise admitted by him. Since Supreme Court and our own precedent hold that prior convictions need not be proven to a jury nor admitted by the defendant to enhance a sentence, Dees s argument is without merit. We therefore affirm the district court s sentence. AFFIRMED. 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.