United States of America v. Vito Barbosa

* After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 28, 2006*
Decided March 29, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-3124
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
VITO BARBOSA,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division
No. 04 CR 609-1
Milton I. Shadur,
Judge.
ORDER
Vito Barbosa was indicted for possession of a firearm by a felon. See 18
U.S.C. § 922(g)(1). He pleaded guilty, and the probation officer who prepared the
presentence investigation report recommended that Barbosa be sentenced to a
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 05-3124 Page 2
minimum term of 180 months' imprisonment under the Armed Career Criminal Act
because of his multiple prior convictions. See id. § 924(e)(1). During the plea
colloquy, Barbosa would not concede his status as an armed career criminal. The
district court nonetheless found at sentencing that Barbosa had two prior
convictions for burglary of a building, which is a violent felony, and another
conviction for possession with intent to distribute cocaine, which is a serious drug
offense. See id. § 924(e)(2). Accordingly, the court sentenced Barbosa to 180
months' imprisonment.
Barbosa's only argument on appeal is that the Sixth Amendment was
violated because his prior convictions were not proved to a jury beyond a reasonable
doubt. He admits that Almendarez-Torres v. United States, 523 U.S. 224 (1998),
rejects this argument, but he contends that in Shepard v. United States, 125 S. Ct.
1254 (2005), the Supreme Court "eroded" Almendarez-Torres to the point that it no
longer is good law. But Almendarez-Torres has not been overruled, and it is for the
Supreme Court, not us, to decide when or if it will be. See Shepard, 125 S. Ct. at
1262-63 (plurality opinion); id. at 1269-70 (O'Connor, J., dissenting); see also United
States v. Browning, 436 F.3d 780, 782 (7th Cir. 2006); United States v. Williams,
410 F.3d 397, 402 (7th Cir. 2005); United States v. Ngo, 406 F.3d 839, 842 (7th Cir.
2005). Barbosa's counsel makes this argument solely to preserve it for presentation
to the Supreme Court, and he has now done so.
AFFIRMED.

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