United States v. Katrell B. Morris

293 F.3d 1010, 2002 U.S. App. LEXIS 11879, 2002 WL 1307411
Court of Appeals for the Seventh Circuit·Decided June 17, 2002·No. 01-4241·Published·Cited by 51 cases

Opinion

ROVNER, Circuit Judge.

Katrell Morris pled guilty to possession of a firearm by a felon and was sentenced to 180 months imprisonment, 5 years of supervised release, and a $100 special assessment. He, appeals his sentence on a number of grounds, but the dispositive one is his challenge to the court’s application of the armed career criminal enhancement. Morris acknowledges that if the armed career criminal enhancement is upheld, then his other challenges to the sentence are meaningless because the sentence would be valid.

Morris’ sentence was enhanced under the Armed Career Criminal Act (ACCA), which provides in relevant part

(e)(1) 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 ....

*1012 [emphasis added] 18 U.S.C. § 924(e)(1). The convictions which formed the basis for that enhancement were a juvenile adjudication for attempted robbery,' which Morris does not challenge, and two convictions for aggravated discharge of a firearm, The aggravated discharge convictions stemmed from actions taken on a single night, and resulted in concurrent eight year sentences. Morris argues that the enhancement is not proper because the aggravated discharge convictions were not committed on occasions different from one another and thus he lacks the three convictions necessary for application of the armed career criminal enhancement. He further contends that the enhancement of his sentence violated his constitutional rights as set forth in Apprendi v. New Jersey, 580 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because a jury was never presented with the issue of whether the convictions were committed on occasions different from one another.

We first consider the Apprendi issue. Morris argues that under Apprendi, the determination of whether his prior convictions were “committed on occasions different from one another” should have been presented to the grand jury, tried before the jury, and found beyond a reasonable doubt before he was sentenced under § 924(e)(1). We rejected this argument in United States v. Skidmore, 254 F.3d 635 (7th Cir.2001), and that remains the law of this circuit. Skidmore relied on Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), in which the Supreme Court held that recidivism used to enhance a defendant’s maximum penalty is not an element of a crime that must be charged in the indictment and determined beyond a reasonable doubt, but is instead a traditional sentencing factor decided by the judge. Skidmore, 254 F.3d at 642; Almendarez-Torres, 523 U.S. at 239, 243-44, 118 S.Ct. 1219. Almendarez-Torres noted that recidivism has long been considered a distinct issue because it “ ‘does not relate to the commission of the offense, but goes to the punishment only.’ ” 523 U.S. at 244, 118 S.Ct. 1219, quoting Graham v. West Virginia, 224 U.S. 616, 629, 32 S.Ct. 583, 56 L.Ed. 917 (1912). Although the Ap-prendi Court suggested that Almendarez-Toms might not survive the logic of Ap-prendi the Court did not overrule Almen-darez-Torres, and in fact explicitly carved out an exception for recidivism in its holding. Apprendi, 530 U.S. at 489-90, 120 S.Ct. 2348. Unless and until the Court chooses to overrule Almendarez-Torres, we are bound by it. For that reason, we held in Skidmore that an enhancement imposed pursuant to § 924(e)(1) based on a defendant’s three separate violent felonies is proper under Apprendi.

Morris attempts to avoid our clear holding in Skidmore by arguing that he challenges not the fact of the convictions, but the determination that those convictions were committed on occasions different from one another. That determination, he argues, should have been submitted to the jury under the reasonable doubt standard. Morris presents no authority for parsing out the recidivism inquiry in that manner. The logic of both Skidmore and Almenda-rez-Torres applies to this aspect of the recidivism inquiry, which merely involves a determination of which prior convictions will be considered. The Almendarez-Tor-res Court even cited § 924(e) of the ACCA as one of many examples for the proposition that “prior commission of a serious crime — is as typical a sentencing factor as one might imagine.” 523 U.S. at 230, 118 S.Ct. 1219. Moreover, the recidivism enhancement at issue in Almendarez-Torres also- limited the convictions that could be considered — to include only .aggravated felonies. Morris has failed to articulate a reasoned basis for distinguishing the factor at issue here from other factors tradition *1013 ally considered in enhancing a sentence based on recidivism.

In fact, this precise argument was recently rejected by the Second Circuit in United States v. Santiago, 268 F.3d 151 (2d Cir.2001). In Santiago, the court held that Apprendi’s recidivism exception encompasses the issue of whether prior convictions arose from offenses “committed on occasions different from one another.” Id. at 155. The court first reasoned that “the separateness of the convictions is not a fact which is different in kind from the types of facts already left to the sentencing judge by Almendarez-Torres and Ap-prendi ...” Id. at 156. Second, the court noted that recidivism has traditionally been an issue for the judge, and that treating recidivism as a substantive criminal offense would be problematic, including the risk of significant prejudice to the defendant from introducing evidence of the defendant’s prior crimes to the jury. Id. Finally, the court noted that Almendarez-Torres distinguished recidivism as relating to the punishment alone, not to the commission of the offense, which was true of the § 924(e)(1) inquiry as well. Id. Accordingly, the court rejected the defendant’s attempt to cabin the separateness inquiry under Apprendi. We agree with Santiago, and hold consistent with Skid-more that the enhancement in this case was proper under Apprendi.

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United States v. Katrell B. Morris, 293 F.3d 1010, 2002 U.S. App. LEXIS 11879, 2002 WL 1307411 (7th Cir. 2002).

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