United States v. Davis

59 F. App'x 176

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 16, 2003
• Docket: No. 01-56614; D.C. Nos. CV-98-01153-JSR, CR-92-00687-JSR
• Status: Published

Opinion

MEMORANDUM

*

Defendant Paul Anthony Davis (“Davis”) appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his conviction and sentence for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(e)(1) and for possession of a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Davis first argues that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), should apply retroactively to his conviction and sentence. Davis contends that under Apprendi, he was denied due process of law when the district court enhanced his sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1) without first submitting the issue of the prior conviction to the jury. This argument, however, is foreclosed by our recent decision in United States v. Sanchez-Cervantes, 282 F.3d 664, 667-68 (9th Cir.2002). There, we held that Apprendi does not apply retroactively on collateral review.

Next, Davis contends that independent of Apprendi it was reversible error to apply the ACCA because the prior convictions necessary for sentencing under the ACCA were not alleged in the indictment or proven to the jury beyond a reasonable doubt. We considered this same argument in United States v. Tighe, 266 F.3d 1187, 1191 (9th Cir.2001), and rejected it. In Tighe, we held that the three previous convictions for a violent felony or a serious drug offense need not be alleged in a felon-in-possession § 924(g) prosecution where the sentence is later imposed under § 924(e)(1). Id. at 1191 (“Under the current state of the law, the Constitution does not require prior convictions that increase a statutory penalty to be charged in the indictment and proved before a jury beyond a reasonable doubt.”); see also United States v. Summers, 268 F.3d 683, 688-89 (9th Cir.2001).

Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) , and Castillo v. United States, 530 U.S. 120, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000) , do not support a contrary result. Recidivism factors have been deemed traditional sentencing enhancements. 526 U.S. at 249, 530 U.S. at 128. Neither case supports Davis’ argument that the ACCA is a separate crime with elements that must be proven beyond a reasonable doubt rather than a sentencing enhancement that need not be presented to the jury.

AFFIRMED

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.