United States v. Johnson

22 F. App'x 336

Opinion

OPINION

PER CURIAM.

David Johnson appeals his conviction and sentence for possession of a firearm by a felon. On appeal, Johnson contends that the district court committed plain error by failing to suppress evidence and that he was improperly sentenced under the Armed Career Criminal Act in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We affirm.

First, Johnson has waived any challenge to the seizure of evidence, because he failed to move to suppress the evidence prior to trial without just cause to excuse his failure. See United States v. Ricco, 52 F.3d 58, 62 (4th Cir.1995); Fed.R.Crim.P. 12(b)(3), (f). Second, Apprendi does not apply to Johnson’s increased sentence under 18 U.S.C.A. § 924(e) (West 2000), because a § 924(e) enhancement is based on prior convictions, a factor that was specifically excluded from the holding of Apprendi. Contrary to Johnson’s contentions, Apprendi expressly declined to revisit the holding of Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), that prior felony convictions are merely traditional sentencing enhancements, rather than elements of the offense. Apprendi, 530 U.S. at 488-90; see also United States v. Skidmore, 254 F.3d 635, 642 (7th Cir.2001) (holding that Apprendi does not affect enhanced sentence under § 924(e)); United States v. Thomas, 242 F.3d 1028, 1035 (11th Cir.) (same), cert. denied, — U.S. -, 121 S.Ct. 2616, 150 L.Ed.2d 770 (2001); United States v. Dorris, 236 F.3d 582, 587-88 (10th Cir.2000) (same), cert. denied, — U.S.-, 121 S.Ct. 1635, 149 L.Ed.2d 495 (2001); United States v. Mack, 229 F.3d 226, 235 n. 12 (3d Cir.2000) (same), cert. denied, — U.S.-, 121 S.Ct. 2015, 149 L.Ed.2d 1016 (2001).

Accordingly, we affirm Johnson’s conviction and sentence. We dispense with oral argument, because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED.