United States v. Howard Eugene Liner

*
The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-3974
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Eastern
v. * District of Missouri.
*
Timothy D. Still, * [UNPUBLISHED]
*
Appellant. *
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Submitted: January 9, 2006
Filed: January 13, 2006
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Before MURPHY, FAGG, and SMITH, Circuit Judges.
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PER CURIAM.
Timothy D. Still pleaded guilty to being a felon in possession of a firearm.
After the Supreme Court decided Blakely v. Washington, 124 S. Ct. 2531 (2004), but
before the Court decided United States v. Booker, 125 S. Ct. 738 (2005), the district
court * sentenced Still to sixty months in prison and two years of supervised release.
Still appeals.

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Acknowledging our contrary case law, see United States v. Nolan, 397 F.3d
665, 666-67 (8 th 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 (8 th 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 (8 th Cir. 2005); see
Apprendi v. New Jersey, 530 U.S. 466, 489-90 (2000); Booker, 125 S. Ct. at 756.
We thus affirm Still’s sentence.
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