United States v. McKeithan

22 F. App'x 279

• Court: Court of Appeals for the Fourth Circuit
• Decided: December 13, 2001
• Docket: 01-4443
• Status: Unpublished

Opinion

OPINION

PER CURIAM.

Bobby Sherrill McKeithan pled guilty to a criminal information charging him with possession of a firearm after having been convicted of a felony, in violation of 18 U.S.C.A. § 922(g) (West 2000). The district court determined that McKeithan was an armed career criminal, pursuant to 18 U.S.C.A. § 924(e) (West 2000), and sentenced him to a 180 month term of imprisonment. McKeithan appeals his sentence.

McKeithan contends that his sentence as an armed career criminal under § 924(e) is unconstitutional under the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We conclude, however, that Apprendi does not apply to McKeithan’s enhanced sentence under § 924(e) because it is based on his prior convictions, a factor that was specifically excluded from the holding of Apprendi. Contrary to McKeithan’s assertions, 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 sentencing enhancements, rather than elements of the offense. Apprendi, 530 U.S. at 488-90, 120 S.Ct. 2348; 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, 586-88 (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).

We therefore affirm McKeithan’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.