UNITED STATES of America, Plaintiff-Appellee, v. Curtis A. KING, Defendant-Appellant, 153 F. App'x 387

Order The defendant’s sentence was enhanced because of a prior conviction. His sole contention on appeal is that this conviction had to be alleged in the indictment and proved to a jury’s satisfaction. He concedes that Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), rejected this precise contention but contends that AlmendarezTorres is no longer good law. This argument is not one that we are free to entertain, however; only the Supreme Court can decide when one of its decisions will be overruled.

The Justices continue to recite the Almendarez-Torres limitation on the approach adopted by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See United States v.

Booker, 543 U.S. 220, 125 S.Ct. 738, 756, 160 L.Ed.2d 621 (2005): “Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a guilty verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” (Emphasis added.) Defendant’s counsel therefore raises the contention only to preserve it for presentation to the Supreme Court. That task has been accomplished, and we send the case on its way. Affirmed