Dorcas Njenga v. Alberto Gonzales

1The Honorable Charles A. Shaw, United States District Judge for the Eastern
District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-3722
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Gerald Thomas Williams, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: March 16, 2007
Filed: March 26, 2007
___________
Before WOLLMAN, MURPHY, and BYE, Circuit Judges.
___________
PER CURIAM.
Gerald Thomas Williams appeals the 120-month sentence the district court 1
imposed after he pleaded guilty to possessing child pornography, in violation of 18
U.S.C. § 2252A(a)(5)(B). Williams argues that imposition of a statutory minimum
sentence based on an alleged prior conviction violates his Fifth and Sixth Amendment
rights as established in United States v. Booker, 543 U.S. 220 (2005). Citing Blakely
v. Washington, 542 U.S. 296 (2004), he also questions the continued viability of

-- 1 of 2 --

-2-
Almendarez-Torres v. United States, 523 U.S. 224, 239-47 (1998) (prior conviction
is sentencing factor for court to decide).
We conclude the district court did not err in determining that Williams’s prior
conviction qualified under 18 U.S.C. § 2252A(b)(2) as abusive sexual conduct
involving a minor. See Booker, 543 U.S. at 244 (reaffirming prior-conviction
exception to facts that must be admitted by defendant or proved to jury beyond
reasonable doubt); United States v. Torres-Alvarado, 416 F.3d 808, 810 (8th Cir.
2005) (“we are bound by Almendarez-Torres until the Supreme Court explicitly
overrules it”); United States v. Johnson, 411 F.3d 928, 931 (8th Cir.) (Sixth
Amendment does not require that fact of prior conviction be determined by jury; once
court determines that prior conviction exists, characterization of that conviction is
legal matter for court), cert. denied, 126 S. Ct. 505 (2005).
Accordingly, we affirm.
______________________________

-- 2 of 2 --