United States v. Charles Mack

229 F.3d 226, 2000 U.S. App. LEXIS 24484, 2000 WL 1456245

• Court: Court of Appeals for the Third Circuit
• Decided: September 29, 2000
• Docket: 99-1265
• Status: Published

Opinions

OPINION OF THE COURT

GARWOOD, Circuit Judge:

After a jury trial, defendant-appellant Charles Mack (Mack) was convicted on one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Following Mack’s conviction, the district court sentenced Mack pursuant to the enhanced penalties under the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. § 924(e)(1). Mack now appeals, challenging the application of the ACCA to his sentence. We affirm.

Facts and Proceedings Below

At approximately 8:35 a.m. on March 15, 1997, Philadelphia Police Officers responded to a report of gunfire outside an “after-hours” bar located at Frazier and Market Streets in Philadelphia. Upon arriving at the scene, one of the officers observed Mack bent down and crouched behind a parked vehicle. As he approached Mack, the officer noticed a handgun in Mack’s right hand. The officer then drew his sidearm and ordered Mack to put the handgun down. In response, Mack threw the handgun under the parked vehicle. One officer then handcuffed Mack and placed him in custody, while another retrieved the tossed weapon, a loaded .380 caliber semi-automatic handgun, from underneath the parked vehicle.

Shortly thereafter, the officers encountered Gregory Wessels (Wessels) outside the bar. Wessels indicated to the officers that he had been shot in his right leg. When asked to identify the individual who had shot him, Wessels stated that it was Mack. Wessels was then transported to a local hospital where doctors removed a .380 caliber bullet from his right leg. Later that day, while in the hospital, Wessels again identified Mack as the shooter.²

From the area outside the bar, the officers recovered twelve spent .380 caliber shell casings. These shell casings were found just a few feet away from where Mack had been standing and were consistent with ejection from a .380 caliber handgun. The officers also recovered several .22 caliber shell casings from the area and found a .22 caliber rifle from inside the bar. Examination and test-firing of Mack’s .380 caliber handgun revealed that it was operational and contained gunshot residue in its barrel. After comparing the spent shell casings recovered outside the bar with the .380 caliber handgun in Mack’s possession, the officers determined that the casings had been fired by Mack’s handgun. The .380 caliber bullet removed from Wessels’s leg was also analyzed. While the bullet bore insufficient markings to positively match it to Mack’s handgun, the bullet was of the same caliber and did in fact have markings consistent with being fired from Mack’s handgun. Moreover, the officers determined that Mack’s handgun had been manufactured outside of Pennsylvania and had traveled in interstate commerce.

On June 30, 1998, a federal grand jury in the Eastern District of Pennsylvania indicted Mack under 18 U.S.C. § 922(g)³ for one count of knowingly possessing in and affecting interstate commerce, on or about March 15, 1997, a firearm, after he had been previously convicted in the Court of Common Pleas, Philadelphia County, Pennsylvania, of an unspecified felony punishable for a term of imprisonment exceeding one year. The government’s pretrial detention motion, filed on July 17, 1998, stated that Mack faced a fifteen-year minimum sentence and a maximum sentence of life imprisonment for violating 18 U.S.C. § 922(g). In addition, the motion mentioned six of Mack’s prior convictions: two convictions for aggravated assault, one for robbery, one for possession with intent to deliver a controlled substance, and two for violating the Uniform Firearms Act of Pennsylvania. On August 12, 1998, in response to defense counsel’s discovery letter, the government provided certified copies of four of Mack’s prior felony convictions: (1) robbery and conspiracy on November 7, 1977; (2) aggravated assault, resisting arrest, and obstruction of justice on July 21, 1982; (3) aggravated assault and possession of an instrument of crime on December 11, 1985; and (4) possession with intent to deliver a controlled substance and conspiracy on April 9, 1991. Moreover, on several occasions prior to trial, the government orally notified defense counsel of its intent to seek an enhanced sentence under the ACCA.⁴

A two-day jury trial concluded on September 25, 1998, with the jury finding Mack guilty of violating 18 U.S.C. § 922(g). On November 30, 1998, the Probation Office submitted its Presentence Investigation Report (PSR) for Mack’s sentencing. The PSR stated that Mack was subject to sentencing under the ACCA and indicated that, prior to 1997, Mack had been convicted of seven violent felonies and serious drug offenses in the Philadelphia Court of Common Pleas: (1) robbery and conspiracy on November 7, 1977; (2) carrying a firearm without a license on January 17, 1980; (3) aggravated assault, resisting arrest, and obstruction of justice on July 21, 1982; (4) a violation of the Uniform Firearms Act on March 13, 1985; (5) aggravated assault and possession of an instrument of crime on December 11,1985; (6) possession of a controlled substance on March 21, 1986; and (7) possession with intent to deliver a controlled substance and conspiracy on April 9, 1991. Because he was considered an armed career criminal, Mack’s criminal history category was VI.⁵ See U.S.S.G. § 4B1.4(c)(2). The PSR calculated Mack’s total offense level to be thirty-four, as Mack possessed the handgun in connection with a crime of violence (the shooting of Wessels). See U.S.S.G. § 4B1.4(b)(3)(A). The imprisonment range for a defendant with a criminal history of VI and a total offense level of thirty-four is 262-327 months. See U.S.S.G. Ch. 5, Part A.

In response to the PSR, Mack filed a pro se motion challenging the application of the ACCA enhancement on the basis that he did not receive formal pretrial notice of the government’s intent to seek an enhanced sentence under the ACCA.⁶ However, Mack did not at any time contest the validity of the convictions reported in the PSR. On March 9, 1998, the government filed a formal notice of its intention to seek the enhanced penalties, listing four prior convictions that the government was relying on to trigger the application of the ACCA. These were the same four prior convictions that were contained in the government’s pretrial detention motion, and they correspond to the certified copies of conviction provided to defense counsel on August 12, 1998 in response to defense counsel’s discovery letter.

On March 19, 1998, the district court conducted a sentencing hearing, at which the district court considered Mack’s objection to the application of the ACCA. After determining that the ACCA itself does not require pretrial notice, the district court concluded that the only remaining question was whether Mack received the requisite notice to satisfy constitutional due process concerns. The district court ruled that the actual, even if not formal, written notice provided to. Mack before trial regarding his prior convictions and possible sentence, the government’s pretrial discussions with Mack’s counsel regarding the applicability of the ACCA and its intention to seek its enhanced penalties, and the formal notice Mack received in the PSR and the government’s formal notice filed ten days before sentencing satisfied the requirements of due process. Therefore, the district court overruled Mack’s notice objection. Mack was convicted of violating 18 U.S.C. § 922(g)(1), and a defendant convicted under section 922(g) who has three previous convictions for violent felonies or violent drug offenses is subject to a sentence enhancement under the ACCA and is deemed “an armed career criminal” under U.S.S.G. § 481.4(a). The district court found that Mack qualified as an armed career criminal under the ACCA. The district court also concluded that Mack used or possessed the handgun in the commission of a violent felony, the shooting of Wessels. Accordingly, the district court sentenced Mack to 262 months of imprisonment, five years of supervised release, and a special assessment of $100. Mack filed a timely notice of appeal.

Discussion

On appeal, Mack asserts the following points of error: (1) the district court erred in enhancing his sentence under the ACCA in the absence of formal pretrial notice of the government’s intention -to seek enhancement and of the specific prior convictions supporting its application; (2) the district court’s finding that Mack used or possessed a firearm in connection with a crime of violence was erroneous because it was based on a preponderance of evidence standard rather than the required and higher “clear and convincing” evidence standard; and (3) the evidence was insufficient to support the district court’s finding that Mack used or possessed a firearm in connection with a crime of violence. We consider these issues in that order.

I. Notice of Intent to Seek a Sentence Under the ACCA

Mack did not challenge the validity of the convictions supporting the application of the ACCA before the district court. On appeal, Mack does not assert that he was provided insufficient time to contest these prior convictions nor claims that the district court’s finding that he qualified as an armed career criminal was erroneous. Instead, pointing to the importance of pretrial knowledge of the applicability of the ACCA in deciding whether to plead guilty or to go to trial, he contends that his due process rights were violated by the application of the ACCA, because he did not receive formal, pretrial notice of the government’s intent to seek an enhanced sentence under the ACCA and of the particular prior convictions that would underlie the application of the ACCA. Accordingly, Mack concludes that the ACCA cannot be constitutionally applied to him. We disagree.

As Mack concedes, the. ACCA does not require formal, pretrial notice. See United States v. Mauldin, 109 F.3d 1159, 1163 (6th Cir.1997); United States v. Hardy, 52 F.3d 147, 150 (7th Cir.1995); United States v. Craveiro, 907 F.2d 260, 262 (1st Cir.1990). Thus, only notice necessary to satisfy constitutional due process requirements need be given. This Court reviews de novo Mack’s assertion that his due process rights were violated. See United States v. Joseph, 996 F.2d 36, 39 (3d Cir.1993).

In Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962), the Supreme Court stated that “due process does not require advance notice that the trial on the substantive offense will be followed by an habitual criminal proceeding.” Id. at 504. “Nevertheless, a defendant must receive reasonable notice and an opportunity to be heard relative to the recidivist charge even if due process does not require that notice be given prior to the trial on the substantive offense.” Id. at 504. The ACCA is a sentence enhancement statute and does not create a separate offense.⁷ See United States v. Hawkins, 811 F.2d 210, 220 (3d Cir.1987). See also United States v. Henry, 933 F.2d 553, 558 (7th Cir.1991), cert. denied, 503 U.S. 997, 112 S.Ct. 1703, 118 L.Ed.2d 412, (1992); United States v. Affleck, 861 F.2d 97, 99 (5th Cir.1988), cert. denied, 489 U.S. 1058, 109 S.Ct. 1325, 103 L.Ed.2d 593 (1989). In Hawkins, this Court held that the government’s filing notice of its intent to request an enhanced sentence under the ACCA, which included a list of the accused’s prior convictions, satisfied due process. See id. However, we declined to determine to what extent, if any, notice by the government of its intention to seek enhanced penalties under the ACCA is constitutionally required. See id. Every circuit that has addressed the issue has concluded that formal, pretrial notice is not constitutionally mandated. See United States v. O’Neal, 180 F.3d 115, 125 (4th Cir.), cert. denied, — U.S.-, 120 S.Ct. 433, 145 L.Ed.2d 339 (1999); Mauldin, 109 F.3d at 1163; United States v. Bates, 77 F.3d 1101, 1105 (8th Cir.1996); United States v. Gibson, 64 F.3d 617, 625-26 (11th Cir.1995); Hardy, 52 F.3d at 150; Craveiro, 907 F.2d at 264-65. We agree and hold that due process does not require the government to provide formal, pretrial notice of its intention to seek a sentence under the ACCA.

Although Mack did not receive formal notice by the government that he could be sentenced as an armed career criminal until ten days before the day of sentencing, he received actual notice well before trial. More than two months before trial, the government filed its pretrial detention motion that listed six of Mack’s previous convictions: robbery in 1977, aggravated assault in 1982, a Uniform Firearms Act violation in 1980, aggravated assault in 1982, a Uniform Firearms Act violation in 1985, aggravated assault in 1985, and possession with intent to deliver a controlled substance in 1991. This pretrial motion also stated that Mack was subject to a mandatory minimum term of fifteen years’ imprisonment, with the possible maximum penalty life imprisonment. In addition, more than one month before trial, the government provided defense counsel with certified copies of four of the six convictions listed in the pretrial detention motion. Mack and the government agree that prior to trial, the government orally informed Mack that he could be sentenced as an armed career criminal.

We conclude that Mack received constitutionally adequate notice. First, the government provided him with actual notice prior to trial, including certified copies of the relevant prior convictions. Second, three and a half months before sentencing, Mack received the PSR, which stated that Mack was subject to being sentenced under the ACCA’s enhancement provisions and specified the prior convictions that qualified him for that enhancement (as well as other convictions on which the ACCA’s application might have been based). Third, the government filed an additional notice ten days before sentencing formally notifying Mack that he could be sentenced as an armed career criminal. Therefore, Mack received more than sufficient notice of the possibility of an enhanced sentence under the ACCA. See United States v. Rundle, 318 F.2d 64, 66 (3d Cir.1963) (“[I]t is well settled that while a defendant ‘must receive reasonable notice and an opportunity to be heard relative to the recidivist charge’ that ‘due process does not require advance notice that the trial on the substantive offense will be followed by an habitual criminal accusation.’ ”) (quoting Oyler, 82 S.Ct. at 504); see also Hardy, 52 F.3d at 150 (finding that the following met due process notice requirements: actual, informal notice; receipt of the PSR listing all prior convictions and stating the ACCA’s applicability; and an additional formal notice just before sentencing).

In conclusion, Mack had sufficient opportunity to contest the earlier convictions and their applicability to his sentence. He chose not to do so. Moreover, Mack makes no claim of factual surprise of either the government’s decision to seek an enhanced sentence under the ACCA or the convictions supporting the application of the ACCA. Formal pretrial notice by the government would certainly do no harm, and, given the importance of pretrial knowledge of the ACCA’s applicability to the decision whether to plead guilty or to go to trial, we recommend it as the preferred practice. However, it is not constitutionally mandated for good reason, because “the fact of prior conviction is within the knowledge of the defendant.” Oyler, 82 S.Ct. at 504 n. 6. The notice given Mack more than satisfied due process requirements.

II. Appropriate Standard for Factfinding at Sentencing

In determining Mack’s sentence, the application of the enhancement under U.S.S.G. §§ 4B1.4(b)(3)(A) and 4B1.4(c)(2) for Mack’s use or possession of the firearm in connection with a crime of violence — his shooting Wessels — -resulted in an offense level increase from thirty-three to thirty-four and a criminal history category increase from category IV to category VI, with a corresponding guideline imprisonment range increase from a range of 188 to 235 months to a range of 262 to 327 months.⁸ Relying on this Court’s holding in United States v. Kikumura, 918 F.2d 1084 (3d Cir.1990), Mack asserts that the ACCA enhancement was so substantial that it requires the district court to find by clear and convincing evidence that he shot Wessels, instead of only by a preponderance of the evidence, the latter being the test apparently employed by the district court.⁹ We disagree.

The government normally bears the burden of proving facts relevant to sentencing by a preponderance of the evidence. See United States v. Paulino, 996 F.2d 1541, 1545 (3d Cir.1993). “This is because after a jury finds a defendant guilty, the presumption of innocence no longer applies, and the protections that form a corollary to that presumption become less important.” United States v. Bertoli, 40 F.3d 1384, 1409 (3d Cir.1994). In Kikumura, however, this Court held that, under certain circumstances, a higher standard of proof may be required. See Kikumura, 918 F.2d at 1098. Kikumura was convicted of twelve counts of passport and weapons offenses, which resulted in an imprisonment range of 27-33 months under the Sentencing Guidelines. See id. at 1093-94. The district court concluded that Kikumura’s actions were significantly more serious than his convictions and the corresponding guideline range indicated. See id. at 1097. The district court, therefore, imposed an upward departure on several bases, including Kikumura’s intent to cause multiple deaths and serious injuries, his planned detonation of unusually dangerous explosives, his intent to disrupt governmental functions, and the endangerment of public safety and national security. See id. at 1097-98. The district court upwardly departed from Kikumura’s original sentencing range of 27-33 months to a term of 360 months’ imprisonment — a 330 month upward departure from the median of the applicable guideline range of 27-33 months. See id. at 1098. When making its findings at sentencing, the district court employed the preponderance of the evidence standard. Although recognizing this standard as “overwhelmingly” predominant, this Court held that under the circumstances of a “twelve-fold, 330-month departure from the median of the applicable guideline range” the clear and convincing standard was required in light of 18 U.S.C. § 3553(b)’s¹⁰ directive that the sentencing court “find” certain considerations to justify a departure. Id. at 1101-02; see id. at 1101 (“[When a departure] is sufficiently great that the sentencing hearing can be fairly characterized as ‘a tail which wags the dog of the substantive offense,’ ... the factfinding underlying that departure must be established at least by clear and convincing evidence.”) (quoting McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 2417, 91 L.Ed.2d 67 (1986)).

Kikumura’s heightened standard has been applied in other circumstances, albeit only to similarly extreme upward departures. See United States v. Paster, 173 F.3d 206, 216 (3d Cir.1999) (applying the clear and convincing standard when reviewing a nine-level upward departure that increased the guideline range from 108-135 months to 292-365 months); Bertoli, 40 F.3d at 1409-10 (concluding that an upward departure, resulting in a fifty-fold, $6,875 million increase of a defendant’s fine, warranted the clear and convincing standard of proof); United States v. Seale, 20 F.3d 1279, 1288 (3d Cir.1994) (finding the clear and convincing standard governed a seven-fold, $1.5 million upward departure from the maximum fine under the applicable guidelines range). Other decisions have considered sentencing increases that have not warranted such a heightened evidentiary standard. See, e.g., Paulino, 996 F.2d at 1545 & n. 4 (reasoning that the calculation of the amount of narcotics attributable to the defendant, and the resulting increase in his sentence, did not warrant the utilization of the clear and convincing standard); United States v. Mobley, 956 F.2d 450, 458-59 (3d Cir.1992) (departing upward from a 15-21 month range to a 27-month term of imprisonment); see also United States v. Ruggiero, 100 F.3d 284, 290-91 (2d Cir.1996) (refusing to require clear and convincing evidence where enhancements raised the defendants’s offense levels by eight levels each); United States v. Rodriguez, 67 F.3d 1312, 1322-23 (7th Cir.1995) (declining to require clear and convincing evidence for attributing 1,000 kilograms of marijuana to the defendant); United States v. Arango-Montoya, 61 F.3d 1331, 1339 (7th Cir.1995) (rejecting the clear and convincing standard where the defendant’s status as a prior drug offender increased his sentence from a range of 63-78 months’ imprisonment to a term of 120 months); United States v. Trujillo, 959 F.2d 1377, 1381-82 (7th Cir.1992) (concluding that the preponderance of the evidence standard was appropriate where the defendant’s sentence was increased from 115 months to 168 months, reflecting a six-level difference in offense level); United States v. Schuster, 948 F.2d 313, 315-16 & n. 3 (7th Cir.1991) (the difference between the 21-27 month guideline range and the 60-month sentence imposed pursuant to a statutory mandatory minimum was not so dramatic as to mandate a higher standard of proof). The application of § 4B1.4 on account of Mack’s use or possession of the firearm in connection with a crime of violence raised Mack’s applicable guideline imprisonment range from 188 to 235 months to 262 to 327 months. This resulted in an 83 month, or approximately thirty-nine percent, increase from the median sentence of the guideline range. Mack’s actual sentence of 262 months was 27 months, or just under twelve percent, longer than the maximum guideline sentence absent that enhancement; the enhancement raised the bottom of the guideline range by some 74 months, or about thirty-nine percent. Even assuming arguendo that Kikumura’& teachings apply in contexts other than upward departures,¹¹ the increase in Mack’s sentence does not approach the 330-month, twelve-fold increase in Kikumura or the 207-month, three-fold increase in Paster. Rather, it more closely resembles those cases rejecting the heightened burden of proof. Accordingly, the clear and convincing standard of proof is not compelled, and we review the government’s proof at sentencing under the preponderance of the evidence standard.¹²

III. Sufficiency of the Evidence to Support the ACCA’s Application

In his third claim of error, Mack contends that the evidence does not support the district court’s finding that he possessed a firearm in connection with a crime of violence. Specifically, Mack asserts that the evidence was insufficient for the district court to conclude that he shot Wessels. As noted in Part II, the district court’s finding on this matter must be supported by a preponderance of the evidence. This Court reviews the district court’s findings of fact for clear error. See United States v. Yeaman, 194 F.3d 442, 456 (3d Cir.1999). We conclude that the district court did not clearly err in determining that Mack possessed the handgun in connection with a crime of violence. Indeed the evidence supporting that finding is more than ample.

Mack does not dispute that he possessed the .380 caliber handgun, or that shooting someone with it is a crime of violence.¹³ Rather, Mack argues that the evidence does not support the conclusion that he shot Wessels for three reasons: (1) Wes-sels testified at trial that Mack was not the shooter; (2) the testimony of the firearms expert did not positively identify the bullet removed from Wessels’s leg as having come from Mack’s handgun;¹⁴ and (3) there was no evidence on the number of guns and persons involved in the shooting outside the bar. We disagree.

Mack was in possession of a .380 caliber handgun outside the bar, and Wessels was found by the officers outside the bar with a gunshot wound in his right leg from a .380 caliber bullet. Twelve fired .380 caliber shells were lying on the ground in the area where Mack was standing and were the only .380 caliber shells recovered from the crime scene. All twelve shells were positively matched with Mack’s .380 caliber handgun which was found to be operational and to contain gunshot residue in its chamber. Although the bullet removed from Wessels’s leg bore insufficient markings to make a positive match with Mack’s handgun, it was of the corresponding caliber and had markings consistent with it being fired from Mack’s handgun. Moreover, twice on the day he was shot, Wes-sels made statements to the police that Mack was the gunman, although Wessels’s subsequent testimony contradicted those statements. Under these facts, the district court did not err in concluding that Mack shot Wessels. The shooting of Wes-sels constitutes a crime of violence, and Mack used or possessed a firearm in connection with that crime. Accordingly, the district court properly applied U.S.S.G. §§ 4B1.4(b)(3)(A) and 4B1.4(c)(2) in setting Mack’s offense level at thirty-four and his criminal history category at VI. Mack has not established that the district court committed clear error.

Conclusion

We find no error in the district court’s application of the ACCA to Mack’s sentence. Mack’s conviction and sentence are

AFFIRMED.

2 . At trial, however, Wessels denied that it was Mack who shot him.

3 . 18 U.S.C. § 922(g) provides in relevant part:

“It shall be unlawful for any person-

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”

4 . Section 922(g)(1), which proscribes the offense of which Mack was convicted, contains no penalty provision. Section 922 is entitled "Unlawful acts”. Section 924 is entitled "Penalties”. Section 924(a)(2) provides that "[wjhoever knowingly violates subsection ... (g) ... of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both”. Section 924(e)(1), the codification of the ACCA, provides in relevant part:

"In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).”

Section 924(e), which specifies no maximum term of imprisonment, has been construed to authorize a life term. See Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 1734, 128 L.Ed.2d 517 (1994) ("The Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e) (ACCA), raises the penalty for possession of a firearm by a felon from a maximum of 10 years ... to a mandatory minimum sentence of 15 years and a maximum of life in prison ... if the defendant 'has three previous convictions ... for a violent felony or serious drug offense.’ "); United States v. Kole, 164 F.3d 164, 168 (3d Cir.1998) (quoting the foregoing passage from Custis); United States v. Guerrero, 5 F.3d 868, 874 n. 12 (5th Cir.1993); United States v. Carey, 898 F.2d 642, 644 (8th Cir.1990); United States v. Blannon, 836 F.2d 843, 845 (4th Cir.), cert. denied, 486 U.S. 1010, 108 S.Ct. 1741, 100 L.Ed.2d 204 (1988).

5 . Without the application of the ACCA, Mack’s criminal history score was nine, which falls within criminal history category IV.

6 . Concurrent with these objections, Mack also filed a pro se notice of appeal, which was later dismissed by this Court for lack of subject matter jurisdiction.

7 . Mack does not contend otherwise. Neither Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) nor Apprendi v. New Jersey,-U.S.-, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) is to the contrary; neither involved prior conviction enhancement, and the Court noted in Apprendi “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” Id. at 2362-63 (emphasis added). And, Mack has never contended that absent a jury finding beyond a reasonable doubt of his ACCA predicate prior convictions that his statutory maximum sentence could not exceed ten years or was other than life imprisonment.

8 . U.S.S.G. § 4B1.4 provides in relevant part as follows:

“Armed Career Criminal

(a) A defendant who is subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e) is an armed career criminal.

(b) The offense level for an armed career criminal is the greatest of:

(31(A) 34, if the defendant used or possessed the firearm or ammunition in connection with a crime of violence ... or (B) 33, otherwise.

(c) The criminal history for an armed career criminal is the greatest of:

(1) the criminal history category from Chapter Four, Part A (Criminal History), ...; or

(2) Category VI, if the defendant used or possessed the firearm or ammunition in connection with a crime of violence....”

9 . The district court stated "To apply this section [§ 4B1.4], it is enough that the government prove by a preponderance of the evidence that Mr. Mack possessed or used the gun in connection with a crime of violence, it is not required to prove that he was convicted of a crime of violence.” This was said, however, in connection with rejecting Mack’s argument "that because he was convicted only of possessing a firearm and not of any crime of violence these [guideline] subsections do not apply to him.”

10 . 18 U.S.C. § 3553(b) provides in relevant part:

"The court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described....”

11 . The Eighth Circuit has suggested that a heightened standard may be applicable, in certain extreme circumstances, when determining the amount of drugs attributable to a defendant convicted of violating a drug statute. See United States v. Townley, 929 F.2d 365, 369 (8th Cir.1991); but see Rodriguez, 67 F.3d at 1323 (intimating that Kikumura’s heightened scrutiny of departures from the sentencing range provided under the guidelines may not lend itself to the guidelines themselves).

12 . We do not believe that Apprendi, see note 7, supra, requires a different result. Apprendi is concerned with when a fact becomes an element of the offense so as to require its determination by a jury and on the basis of proof beyond a reasonable doubt. Mack has not taken the position before this Court that his shooting of Wessels with the weapon was an element of the offense which had to be found by the jury or that it had to be established beyond a reasonable doubt. Quite the contrary, his argument here proceeds on the basis that it is a sentencing factor for determination by the court at sentencing under a "clear and convincing” evidence standard. Moreover, he argues that his sentence should have been within the guideline range of 188— 235 months, which necessarily assumes that the relevant statutory maximum sentence was not the ten years provided for in § 924(a)(2) but rather life imprisonment as provided in § 924(e). See U.S.S.G. § 5G1.1(c)(1) (guideline sentence may not exceed statutory maximum). While we doubtless have the authority to notice "plain error” — cf. Fed.R.Crim. Proc. 52(b) — in an appropriate circumstance, no such error is shown here. What was before the Court in Apprendi were facts (other than the fact of prior conviction) "that increase[ ] the penalty for a crime beyond the prescribed statutory maximum.” Id., 120 S.Ct. at 2362-63. That is not the case here, where the slatutoiy maximum is life imprisonment (see notes 4 and 7, supra). We can find no "plain error” here. See, e.g., United States v. Aguayo-Delgado, 220 F.3d 926 (8th Cir.2000); United States v. Meshack, 225 F.3d 556, 576 n. 18 (5th Cir.2000).

13 . U.S.S.G. § 4B 1.2(a) provides as follows:

"§ 4B1.2. Definitions of Terms Used in Section 4B1.1

(a) The term "crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”

Mack’s asserted shooting of Wessels is clearly covered by § 4B1.2(a)(l).

14 . Officer Ernest Bottomer, the firearms expert, testified that the bullet removed from Wessels’s leg had probably struck bone or another foreign object, thereby damaging the bullet's condition and preventing a positive match.