United States v. Mack

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

9-29-2000

United States v. Mack

Precedential or Non-Precedential:

Docket 99-1265

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Filed September 29, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-1265

UNITED STATES OF AMERICA,

v.

CHARLES MACK,

Appellant.

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Criminal No. 98-308-1)

District Judge: Honorable Marvin Katz

Argued: March 9, 2000

Before BECKER, Chief Judge, NYGAARD and

GARWOOD,1 Circuit Judges.

(Filed September 29, 2000)

_________________________________________________________________

1. Honorable Will L. Garwood, Circuit Judge for United States Court of

Appeals for the Fifth Circuit, sitting by designation.

David L. McColgin, Esq., (ARGUED)

Assistant Federal Defender,

Supervising Appellate Attorney

Maureen Kearney Rowley, Esq.,

Chief Federal Defender

Federal Court Division,

Defender Association of

Philadelphia

Lafayette Building, Suite 800

437 Chestnut Street

Philadelphia, PA 19106

Counsel for Appellant

Michael R. Stiles, Esq.,

United States Attorney

Walter S. Batty, Jr., Esq.,

Assistant United States Attorney,

Chief of Appeals

Patrick C. Askin, Esq., (ARGUED)

Special Assistant United States

Attorney

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

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.

S 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.

S 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

2

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.

_________________________________________________________________

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

3

On June 30, 1998, a federal grand jury in the Eastern

District of Pennsylvania indicted Mack under 18 U.S.C.

S 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. S 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

_________________________________________________________________

3. 18 U.S.C. S 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 922g(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)

4

A two-day jury trial concluded on September 25, 1998,

with the jury finding Mack guilty of violating 18 U.S.C.

S 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

_________________________________________________________________

provides that "[w]hoever 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,

114 S.Ct. 1732, 1734 (1994) ("The Armed Career Criminal Act of 1984,

18 U.S.C. S 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, 108 S.Ct. 1741 (1988).

5

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. S 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. S 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

_________________________________________________________________

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 alsofiled a pro se notice of

appeal, which was later dismissed by this Court for lack of subject

matter jurisdiction.

6

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.

S 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. S 4B1.4(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

7

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, 82 S.Ct. 501 (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.

_________________________________________________________________

7. Mack does not contend otherwise. Neither Jones v. United States, 526

U.S. 227 (1999) nor Apprendi v. New Jersey, 120 S.Ct. 2348 (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

Henry, 933 F.2d 553, 558 (7th Cir. 1991), cert. denied, 112

S.Ct. 1703, (1992); United States v. Afflek , 861 F.2d 97, 99

(5th Cir. 1988), cert. denied, 109 S.Ct. 1325 (1989). In

Hawkins, this Court held that the government'sfiling 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, 120 S.Ct. 422 (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

9

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.

10

II. Appropriate Standard for Factfinding at Sentencing

In determining Mack's sentence, the application of the

enhancement under U.S.S.G. SS 4B1.4(b)(3)(A) and

4B1.4(c)(2) for Mack's use or possession of thefirearm 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.

_________________________________________________________________

8. U.S.S.G. S 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. S 924(e) is an armed career criminal.

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

of:

* * * * * *

(3)(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 [S 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."

11

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 juryfinds 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. S 3553(b)'s10

_________________________________________________________________

10. 18 U.S.C. S 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. . . ."

12

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, 106 S.Ct. 2411, 2417 (1986)).

Kikumura's heightened standard has been applied in

other circumstances, albeit only to similarly extreme

upward departures. See United States v. Pastor , 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

13

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 S 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's 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 Pastor.

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

_________________________________________________________________

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

14

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'sfinding on

this matter must be supported by a preponderance of the

evidence. This Court reviews the district court'sfindings 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

_________________________________________________________________

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 S 924(a)(2) but rather life imprisonment as provided

in S 924(e). See U.S.S.G. S 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 statutory 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, 2000 WL 988128 (8th Cir., July 18, 2000); United States v.

Meshack, 2000 WL 1218437 at n.18 (5th Cir. Aug. 28, 2000).

13. U.S.S.G. S 4B1.2(a) provides as follows:

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

15

support the conclusion that he shot Wessels for three

reasons: (1) Wessels 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, Wessels

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

_________________________________________________________________

(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 S 4B1.2(a)(1).

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.

16

of Wessels 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.

SS 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.

17

BECKER, Chief Judge, concurring.

I join in Judge Garwood's fine opinion. I write separately

because of the implications of his footnote 12, which deals

with the potential impact on this case of the Supreme

Court's recent decision in Apprendi v. New Jersey, 120 S.

Ct. 2348 (2000). Apprendi declared that"[o]ther than the

fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond

a reasonable doubt." Id. at 6362-63. Viewed through the

lens of the separate opinions of Justices Scalia, Thomas,

O'Connor, and Breyer, see infra at 19-20, Apprendi's

implications for the legitimacy of a variety of sentencing

schemes, including the United States Sentencing

Guidelines, have stirred enormous controversy, portending

that the number of Apprendi challenges by incarcerated

defendants will soon reach tidal proportions.1 While I

_________________________________________________________________

1. One writer has suggested that thirty-nine federal and twenty state

criminal statutes may be unconstitutional under Apprendi. See Brooke

A. Masters, High Court Ruling May Rewrite Sentencing, Wash. Post, July

23, 2000, at A1 (citing work of Professor Susan Klein); see generally

Lewis J. Liman, Initial Thoughts on `Apprendi v. New Jersey,' N.Y.L.J.,

July 5, 2000, at 3 ("[T]he Court's decision has the potential to reopen

the

question of the constitutionality of the [sentencing] guidelines

themselves

. . . ."); Tony Mauro & Jonathan Ringel, Court's Apprendi Hate Crimes

Decision May Have Broad Impact on Sentencing, The Legal Intelligencer,

June 28, 2000, at 4 (quoting John Steer, member of the United States

Sentencing Commission, as stating that Apprendi will require the

Commission to cull "through guidelines, almost guideline by guideline

and offense by offense" to determine which portions comply with the

decision). Apprendi most obviously implicates federal drug sentences

because in such cases it is common for the judge, rather than the jury,

to determine (and sentence based on) the quantity of drugs possessed.

Over 41% of all federal convictions in fiscal year 1999--more than

23,000--were for drug offenses. See United States Sentencing

Commission, 1999 Sourcebook of Federal Sentencing Statistics, at 11.

Federal courts have been sentencing defendants under the United States

Sentencing Guidelines since November 1987, and hence they will no

doubt soon be required to grapple with the question whether Apprendi

applies retroactively on collateral review. The Clerk of this Court has

informed me that this Court has received seventeen applications to file

a second or successive habeas petition raising Apprendi issues during

the past six weeks. I have also been told that Apprendi is cited in nine

of the last thirteen such petitions that have been received, and that two

of the four that do not directly cite Apprendi raise possible Apprendi-

like

issues.

18

ultimately conclude that we need not and should not reach

the Apprendi issue in this case, the merits of that point

seem to me to be close. I therefore take this opportunity: (1)

to explain why the question is difficult; and (2) to identify

one critical Apprendi concern that is created by the unique

intersection between the Armed Career Criminal Act of

1984 ("ACCA"), 18 U.S.C. S 924(e), and the Sentencing

Guidelines.

I.

Charles Apprendi fired several shots "into the home of an

African-American family that had recently moved into a

previously all-white neighborhood." 120 S. Ct. at 2351. The

State of New Jersey charged him with, and Apprendi pled

guilty to, inter alia, two counts of second-degree possession

of a firearm for an unlawful purpose. See id. at 2352. The

maximum sentence for this crime under New Jersey law

was ten years in prison. See id. (citing N.J. Stat. Ann.

S 2C:32-6(a)(2)). Nevertheless, the trial court sentenced

Apprendi to twelve years in prison, relying on a statute that

allowed for an "enhanced" sentence of up to twenty years if

the sentencing judge found that "[t]he defendant in

committing the crime acted with a purpose to intimidate an

individual or group of individuals because of race .. . ." Id.

at 2351-52 (quoting N.J. Stat. Ann. S 2C:44-3(e)). The

Supreme Court of the United States reversed Apprendi's

sentence, holding that "[t]he New Jersey procedure

challenged in this case is an unacceptable departure from

the jury tradition that is an indispensable part of our

criminal justice system." Id. at 2366.

While Apprendi itself concerned only the New Jersey hate

crime statute, there are numerous suggestions in the

majority, concurring, and dissenting opinions that the

case's scope may be quite broad indeed. Justice Thomas's

concurrence argued that any fact that alters the range of

punishments to which a defendant is exposed must be

found by a jury, see id. at 2379-80, acknowledging that his

proposed rule might invalidate the Sentencing Guidelines

themselves. See id. at 2380 n.11. Justice Scalia's

concurrence maintained that "all the facts which must exist

in order to subject the defendant to a legally prescribed

19

punishment must be found by the jury." Id. at 2367.

Justice O'Connor's dissent expressed concern that the

Court's holding "will have the effect of invalidating

significant sentencing reform accomplished over the past

three decades." Id. at 2394. And Justice Breyer, a key

figure in the development of the Sentencing Guidelines,

lamented that "the rationale that underlies the Court's rule

suggests a principle . . . that, unless restricted, threatens

the workability of every criminal justice system (if applied to

judges) or threatens efforts to make those systems more

uniform, hence more fair (if applied to [sentencing]

commissions)." Id. at 2402.

The majority responded to these allegations simply by

noting that "[t]he Guidelines are, of course, not before the

Court. We therefore express no view on the subject beyond

what this Court has already held. See, e.g., Edwards v.

United States . . . ." Id. at 2366 n.21. Edwards, the only

case cited by the majority, was quoted for the proposition

that "a maximum sentence set by statute trumps a higher

sentence set forth in the Guidelines." 523 U.S. 511, 515

(1998). The Court did not cite Mistretta v. United States,

488 U.S. 361 (1989), the case that originally upheld the

constitutionality of the Sentencing Guidelines.

II.

A jury convicted Charles Mack of one count of being a

felon in possession of a firearm, in violation of 18 U.S.C.

S 922(g)(1) [hereinafter "the felon-in-possession statute"].

Section 924 (captioned "Penalties") contains the penalty

provisions for the offenses contained in Section 922.

Section 924(a)(2) states that "[w]hoever knowingly violates

[the felon-in-possession statute] shall befined as provided

in this title, imprisoned not more than 10 years, or both."

The ACCA, codified at Section 924(e), provides that "[i]n the

case of a person who violates [the felon-in-possession

statute] and has three previous convictions . . . for a violent

felony . . . such person shall be fined not more than

$25,000 and imprisoned no less than fifteen years . . . ."

While the statutory text provides only that violators shall be

"imprisoned not less than fifteen years," the Supreme Court

has construed this language as authorizing a life sentence.

20

See Curtis v. United States, 511 U.S. 485, 487 (1994). It is

important to note, as Judge Garwood recognizes, that"[t]he

ACCA is a sentence enhancement statute and does not

create a separate offense." Slip. op. at 10; see also Curtis,

511 U.S. at 490 (holding that the ACCA "provides an

enhanced sentence" for persons found to meet its criteria)

(emphasis added).

The District Court sentenced Mack to 262 months in

prison. This sentence was the result of the combination of

two sentence enhancements found by the District Court

pursuant to the Sentencing Guidelines. The first

enhancement, which I will refer to as "the ACCA

enhancement," applied because Mack was "subject to an

enhanced sentence under the provisions" of the ACCA.

U.S.S.G. S 4B1.4(a) (defining such an individual as "an

armed career criminal"); id. S 4B1.4(b)(3)(B) (mandating that

the offense level for any "armed career criminal" shall be no

less than 33); id. S 4B1.4(c)(3) (enhancing the criminal

history rating for all "armed career criminal[s]" to at least

Category IV). A simple finding that Mack was an armed

career criminal would have, without more, raised his

sentencing range under the Guidelines to between 188 and

235 months. See id. S 5A.

The second enhancement, which I will henceforth refer to

as the "crime of violence enhancement," applied because

the District Court concluded that, in addition to being an

"armed career criminal," Mack had also "possessed [a]

firearm . . . . in connection with a crime of violence," i.e.,

the shooting of Gregory Wessels. Id. S 4B1.4(b)(3)(A);2

S 4B1.4.c.2.3 This enhancement further raised Mack's

potential sentence to between 262 and 327 months. See id.

S 5A.4 As noted above, the District Court ultimately

sentenced Mack to serve 262 months in prison.

_________________________________________________________________

2. Section 4B1.4(b)(3)(A) provides that "[t]he offense level for any armed

career criminal" shall be no less than "34, if the defendant used or

possessed the firearm . . . in connection with a crime of violence."

3. Section 4B1.4(c)(2) states that "[t]he criminal history category of an

armed career criminal" shall be no less than"Category VI, if the

defendant used or possessed the firearm . . . in connection with a crime

of violence."

4. The Sentencing Table contained in Section 5A gives a sentencing

range of between 262 and 327 months for an offender with an offense

level of 34 and a criminal history category of VI.

21

III.

The Apprendi inquiry has two stages. A court must first

determine the "prescribed statutory maximum" sentence for

the crime of which the defendant was convicted and assess

whether the defendant's ultimate sentence exceeded it. If it

did, the court must consider the second-order Apprendi

question: whether the enhanced sentence was based on

"the fact of a prior conviction." If it was, then the sentence

is constitutional.5 If it was not, then the sentence is

unconstitutional. See Apprendi, 120 S. Ct. at 2362-63.

_________________________________________________________________

5. It is not clear how long this will be the case. The "fact of a prior

conviction" exception to Apprendi's general rule is based on the Supreme

Court's 1998 decision in Almendarez-Torres v. United States, 523 U.S.

224, which held that no constitutional violation occurs when a judge,

rather than a jury, increases a criminal sentence beyond the otherwise

prescribed statutory maximum based on the fact of prior convictions.

While Apprendi incorporated the Almendarez-Torres holding into its own,

see 120 S. Ct. at 2362-63 ("Other than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.") (emphasis added), the Apprendi majority went out of

its way to cast the future viability of Almendarez-Torres into question.

See id. at 2362 ("Even though it is arguable that Almendarez-Torres was

incorrectly decided, and that a logical application of our reasoning today

should apply if the recidivist issue were contested, Apprendi does not

contest the decision's validity and we need not revisit it for purposes of

our decision today to treat the case as a narrow exception to the general

rule we recalled at the outset."). Moreover, as commentators have noted,

five sitting Justices are now on record as saying that Almendarez-Torres

was wrongly decided. See Apprendi, 120 S. Ct. at 2379 (Thomas, J.,

concurring); Almendarez-Torres, 523 U.S. at 248 (Scalia, J., joined by

Stevens, Souter, and Ginsburg, dissenting).

I do not suggest that we should predict that the Court will overturn

Almendarez-Torres. Cf. State Oil Co. v. Khan, 522 U.S. 3, 20 (1997)

("Despite what Chief Judge Posner aptly described as Albrecht's

`infirmities, [and] its increasingly wobbly, moth-eaten foundations,'

there

remains the question whether Albrecht deserves continuing respect

under the doctrine of stare decisis. The Court of Appeals was correct in

applying that principle despite disagreement with Albrecht, for it is this

Court's prerogative alone to overrule one of its precedents.") (emphasis

added) (citation omitted). But the apprehension remains.

22

A.

In his footnote dealing with the Apprendi issue in this

case, Judge Garwood resolves the inquiry at stage one,

stating that "[w]hat 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.' [Citing Apprendi]. That is not the case here,

where the statutory maximum is life imprisonment. (see

note 4 and 7, supra)." Slip op. at 14-15 n.12. I am not so

sure.

What was the prescribed statutory maximum in this

case? There are two possibilities. The first and most

obvious answer is 120 months. The jury convicted Mack of

violating the felon-in-possession statute; he was not

charged with, nor convicted of, any other crime. The

maximum possible sentence for violating the felon-in-

possession statute simpliciter is 120 months. See 18 U.S.C.

S 942(a)(2). Thus, if Mack's prescribed statutory maximum

was set at the time of the jury's verdict, then his ultimate

sentence of 262 months exceeded it, and the first stage of

the Apprendi inquiry should be resolved in Mack's favor.

The other possibility, which Judge Garwood endorses, is

that the prescribed statutory maximum in this case was life

imprisonment, i.e., the maximum sentence statutorily

authorized by the ACCA. See Curtis, 511 U.S. at 487. If this

is true, then Apprendi is not implicated because Mack's

ultimate sentence (262 months) was within the prescribed

statutory maximum.

1.

While not spelled out in his opinion in these terms,

Judge Garwood's position appears to be as follows: (1) a

jury convicted Mack of being a felon in possession of a

firearm in violation of the felon-in-possession statute; (2)

the ACCA applies "[i]n the case of a person who violates

[the felon-in-possession statute] and has three previous

convictions . . . for a violent felony;" (3) under Apprendi, the

District Court (rather than a jury) was entitled tofind that

Mack "ha[d] three previous convictions . . . for a violent

felony," and thus to sentence Mack under the ACCA; (4) the

23

ACCA statutorily authorizes a life sentence; (5) the

prescribed statutory maximum in this case was thus life

imprisonment; and, therefore, (6) Mack's ultimate sentence

of 262 months was within the prescribed statutory

maximum and Apprendi is not implicated.

While not without force, this approach to determining a

prescribed statutory maximum is in tension with the

methodology applied by the Supreme Court in Apprendi.

Demonstrating why this is so requires a comparison of the

sentencing mechanics at issue in this case with those at

issue in Apprendi:

(1) Apprendi was "convicted of possession of afirearm for

an unlawful purpose." Apprendi, 120 S. Ct. at 2351.

Mack was convicted of knowingly violating the felon-in-

possession statute;

(2) Absent any additional findings by the trial court, the

maximum sentence that Apprendi faced would have

been ten years in prison. See id. Absent any additional

findings by the District Court, the maximum sentence

that Mack faced would have been ten years in prison.

See 18 U.S.C. S 924(a)(2);

(3) New Jersey law provided that the trial court was

required to sentence Apprendi to "an extended term" of

up to twenty years if it found that he "acted with a

purpose to intimidate an individual . . . because of

race." N.J. Stat. Ann. S 2C:44-3(e); see id. S 2C-43-

7(a)(3) (providing that the extended term for a person

convicted by a jury of a "crime of the second degree"

shall be "between 10 and 20 years"). The ACCA

provides that the District Court was required to

sentence Mack to an "enhanced sentence" of up to life

imprisonment, see Curtis, 511 U.S. at 487, 490, if it

found that he "ha[d] three previous convictions . . . for

a violent felony." 18 U.S.C. S 924(e)(1);

(4) The New Jersey trial court found that Apprendi had

committed his crime "with a purpose to intimidate" and

sentenced him to a "12-year term of imprisonment,"

which was 2 years longer than Apprendi could have

been sentenced to serve but for the "purpose to

intimidate" finding. 120 S. Ct. at 2352. The District

24

Court found that Mack "ha[d] three previous

convictions . . . for a violent felony" and sentenced him

to serve 262 months (or 21 years and 10 months) in

prison, which was 11 years and 10 months longer than

Mack could have been sentenced to serve but for the

"three previous convictions . . . for a violent felony"

finding;

(5) Apprendi held that "[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a

reasonable doubt." 120 S. Ct. at 2362-63. The

Supreme Court held that Apprendi's sentence violated

this constitutional rule. See id. at 2363. For the Court

to do so, it needed to conclude that the "purpose to

intimidate" finding "increase[d] the penalty for

[Apprendi's] crime beyond the prescribed statutory

maximum." But if the New Jersey trial court's"purpose

to intimidate" finding increased Apprendi's sentence

beyond the prescribed statutory maximum, then the

District Court's "three previous convictions . . . for a

violent felony" finding did the same to Mack--the

mechanics are identical.

2.

There are, to be sure, some differences between Apprendi

and this case, but these differences are not material to the

determination of the prescribed statutory maximum

sentence. The first difference exists in the wording of the

statutes. Apprendi was convicted of possession of afirearm

with an unlawful purpose, which is defined as a"crime of

the second degree." N.J. Stat. Ann. S 2C:39:4(a). Under New

Jersey law, a "crime of the second degree" carries a

potential sentence of "between five and 10 years." Id.

S 2C:43-6. Nevertheless, a different provision of the New

Jersey Code of Criminal Justice states that a trial court

shall sentence a defendant to "an extended term" if it finds

that the defendant "acted with a purpose to intimidate." Id.

at 2C:44-3. Thus, the base level sentence for a second

degree offense is provided in Section 2C:43-6 and Section

25

2C:44-3 overtly purports to authorize "an extended term"

above and beyond that base sentence.

Title 18 of the United States Code operates somewhat

differently. Mack's substantive offense was violating the

felon-in-possession statute. Section 924 provides two

different sentencing options for such a person. Section

924(a)(2) provides that "[w]hoever knowingly violates [the

felon-in-possession statute] shall be . . . imprisoned not

more than 10 years." The ACCA, Section 924(e)(2), provides

that "[i]n the case of a person who violates[the felon-in-

possession statute] and has three previous convictions . . .

for a violent felony," the minimum sentence shall be fifteen

years and the maximum shall be life imprisonment. Neither

Section 924(a)(2) nor the ACCA contain any reference to the

other.

In light of this juxtaposition, one could argue that while

New Jersey law required a trial court to impose a base

sentence and then to extend it after concluding that the

defendant had acted with a "purpose to intimidate," federal

law requires no such thing. Instead, the argument would

go, a district court faced with a defendant who has been

convicted of violating the felon-in-possession statute needs

only to determine whether Section 924(a)(2) or the ACCA

provides the appropriate sentence. And if the court

concludes that the defendant "has three previous

convictions . . . for a violent felony," the argument

continues, it should bypass Section 924(a)(2) altogether and

instead sentence under the ACCA. Under this

interpretation, the ACCA did not enhance Mack's sentence,

it simply determined his sentence, as though Section

924(a)(2) began with the words "except as otherwise

provided in Section 924(e)."

However, this argument, which I acknowledge is not

without force, appears foreclosed by Apprendi as well. In

responding to New Jersey's claim that the "purpose to

intimidate" finding was merely a "sentencing factor" (that

may be found by a judge) rather than an "element" (that

must be found by a jury), the Court emphasized that"the

relevant inquiry is one not of form, but of effect--does the

required finding expose the defendant to a greater

punishment than authorized by the jury's guilty verdict

26

alone?" 120 S. Ct. at 2365. Under this standard, it does not

matter whether the ACCA is drafted in such a way as to

"bypass" Section 924(a)(2). The question is whether the

District Court's finding that Mack "ha[d] three previous

convictions . . . for a violent felony" exposed him "to a

greater punishment than authorized by the jury's guilty

verdict alone." Based on the jury's guilty verdict alone, the

longest sentence that Mack could have faced was ten years,

but he was sentenced to serve over twenty years. As a

result, the first Apprendi question cuts in Mack's favor.6

The second difference between this case and Apprendi is

likewise irrelevant to the determination whether the"three

previous convictions . . . for a violent felony"finding

increased Mack's sentence beyond the "prescribed statutory

maximum." In Apprendi, the Supreme Court reaffirmed that

the Constitution allows a judge to increase a defendant's

sentence "beyond the prescribed statutory maximum"

based on "the fact of a prior conviction." 120 S. Ct. at

_________________________________________________________________

6. This view is supported by the Ninth Circuit's recent decision in United

States v. Nordby, No. 99-10191, 2000 WL 1277211 (9th Cir., Sept. 11,

2000). Nordby held "that the amount of drugs for which a defendant is

sentenced under 21 U.S.C. S 841(b)(1) is" a fact that "increases the

prescribed statutory maximum penalty to which a criminal defendant is

exposed." Id. at *1. Nordby was convicted by manufacturing marijuana

and possession of marijuana with an intent to distribute it under Section

841(a). The district court instructed the jury that"the government [was]

not required to prove the amount or quantity of marijuana manufactured

as long as the government proves beyond a reasonable doubt that the

defendant manufactured a measurable or detectable amount of

marijuana." Id. Nordby was convicted by the jury and sentenced to life

imprisonment by the court. See id. Section 841(a) defines the

substantive offense without specifying a penalty. Section 841(b)

enumerates numerous potential penalties for violating Section 841(a)

which depend on the quantity of particular drugs manufactured or

possessed. The Ninth Circuit rejected the argument that "Section 841

contains `no prescribed statutory maximum,' and that therefore Apprendi

does not apply to Nordby's case," noting that "Apprendi makes clear that

the `prescribed statutory maximum' refers simply to the punishment to

which the defendant is exposed solely under the facts found by the jury."

Id. at *4. Because, absent a quantity finding, the maximum sentence

that would have been authorized by Section 841(b) was five years in

prison, the Ninth Circuit concluded that Norby's life sentence exceeded

the prescribed statutory maximum. See id. at *4.

27

2362-63 (emphasis added). While this exception could not

save the trial court's finding in Apprendi's case, which was

based on the "fact" that he had acted with a"purpose to

intimidate," see id. at 2363, it might save the enhancement

in this case, which was based on the fact that Mack"ha[d]

three previous convictions . . . for a violent felony." The

possibility, however, does nothing to change the fact that

the "three previous convictions" finding enhanced Mack's

sentence beyond the "prescribed statutory maximum;" it

simply raises the possibility that in this case the

enhancement was constitutional. In other words, while this

difference between Apprendi and this case may affect the

outcome of the second-order Apprendi question, it is

irrelevant to the resolution of the first.

In sum, I conclude that the District Court's finding,

pursuant to the ACCA, that Mack "ha[d] three previous

convictions . . . for a violent felony" increased his sentence

beyond the "prescribed statutory maximum" as defined in

Apprendi.

B.

If the foregoing is true, Apprendi would require us to ask

whether Mack's sentence beyond the prescribed statutory

maximum of 120 months was based on "the fact of a prior

conviction." As noted above, Mack's enhanced sentence was

based on two findings made by the District Court: (1) that

he was an "armed career criminal," and (2) that he had

"possessed [a] firearm . . . in connection with a crime of

violence."

The first of these findings is--at least for now, see supra

note 5--unquestionably valid under Apprendi. Under the

Sentencing Guidelines, a person is an "armed career

criminal" if he is "subject to an enhanced sentence under

the provisions of [the ACCA]." U.S.S.G.S 4B1.4(a). The

ACCA applies to any person convicted of violating the felon-

in-possession statute who also "has three previous

convictions . . . for a violent felony or a serious drug

offense." 18 U.S.C. S 924(e)(1). The terms"violent felony"

and "serious drug offense" are both defined in the statutory

text, see id. S 924(e)(2)(A-B), and there has been no

28

suggestion that the felonies for which Mack had previously

been convicted do not fall within the statutory language.

Apprendi problems arise, however, when the District

Court's second finding is considered. For Mack to have

been eligible for any sentence over 235 months, the District

Court needed also to conclude that Mack had "possessed

the firearm . . . in connection with a crime of violence." For

while the ACCA statutorily authorizes a life sentence, see

Curtis, 511 U.S. at 487, the Sentencing Guidelines operate

to deprive a district court of the ability to impose it in a

case such as Mack's. Even with the crime of violence

enhancement, the maximum sentence allowed by the

Guidelines would have been 327 months. More precisely,

with the ACCA enhancement, but without the crime of

violence enhancement, Mack's offense level would have

been 33 and his criminal history rating would have been IV.

See supra Part II. With these ratings, the maximum

allowable sentence would have been 235 months. See

U.S.S.G. S 5A. Even with the crime of violence enhancement

(which raised Mack's offense level to 34 and his criminal

history rating to VI, see supra Part II), the longest term to

which the District Court could have sentenced him was 327

months. See U.S.S.G. S 5A.

In other words, with or without the two sentence

enhancements, Mack could not have been sentenced to life

in prison. This is because a defendant with a criminal

history rating of IV (as Mack would have been without the

crime of violence enhancement) is not eligible for a life

sentence unless his or her offense level is at least 39. A

defendant with a criminal history rating of VI (as Mack was

after the crime of violence enhancement was applied) is not

exposed to a potential life sentence unless his or her

offense level is at least 37. See U.S.S.G.S 5A. There has

been no suggestion that Mack's offense level was even

potentially as high as 37, much less 39.

In this case, the District Court found that Mack had

unlawfully possessed the firearm in connection with the

shooting of Wessels. While shooting another person would

unquestionably qualify as a "crime of violence" under the

Guidelines, see id. S 4B1.2(a)(1), Mack has never been

charged, must less convicted by a jury, with shooting

29

Wessels.7 As a result, this finding does not fall within the

"fact of a prior conviction" exception to Apprendi's general

rule. If this logic is correct, then the maximum allowable

sentence under Apprendi in this case was 235 months--27

months less than the 262 month sentence ultimately

imposed.

There is, so far as I can tell, but one possible response to

this argument. One could acknowledge that the "prescribed

statutory maximum" in this case was 120 months and

concede that Mack's sentence of 262 months exceeded it,

but nevertheless assert that the (unquestionably valid)

statutory ACCA enhancement increased Mack's potential

sentence to life imprisonment. Because the District Court's

ultimate sentence of 262 months fell within the range that

could have been authorized by the ACCA finding, the

argument goes, the sentence does not violate Apprendi.

The question whether a valid sentence enhancement may

operate to raise the potential as well as the actual sentence

for a crime beyond the prescribed statutory maximum has

not been squarely addressed by the Supreme Court. Neither

of the Court's recent cases involving the validity of sentence

enhancements involved two separate enhancements. See

Apprendi, 120 S. Ct. at 2351 (involving a single

enhancement imposed if the presiding judge concluded that

"[t]he defendant in committing the crime acted with a

purpose to intimidate an individual or group of individuals

because of race, color, gender, handicap, religion, sexual

orientation or ethnicity" (quoting N.J. Stat. Ann. S 2C:44-

3(e))); Almendarez-Torres v. United States, 523 U.S. 224,

227 (1998) (involving enhancement based on the fact that

the non-citizen defendant's earlier deportation had been

"pursuant to" three earlier "convictions for aggravated

felonies").

I am not certain of the correct answer to this question.

The Supreme Court has implied that the "fact of a prior

conviction" exception should be narrowly construed. Cf.

Apprendi, 120 S. Ct. at 2361 (noting that the exception,

first enunciated in Almendarez-Torres,"represents at best

_________________________________________________________________

7. The evidence that Mack shot Wessels was substantial but not

overwhelming. See slip op. at 3.

30

an exceptional departure from . . . historic practice"). Since

the Supreme Court has not extended the Almendarez-Torres

"exception" to cover increases in potential sentences,

perhaps we should not do so either.

On the other hand, a fairly strong argument can be made

that an ultimate sentence does not violate the Constitution

so long as it is within the range of sentences authorized by

a valid sentence enhancement. The ACCA enhancement

was valid under Apprendi, and the ACCA statutorily

authorizes a life sentence. See Curtis, 511 U.S. at 487. But

for the Sentencing Guidelines, it appears incontestable that

the District Court would have had discretion, both

statutorily and constitutionally, to sentence Mack to life

imprisonment. Since the Sentencing Guidelines are

themselves a constitutional mechanism for channeling the

discretion that a sentencing court would otherwise enjoy,

see Mistretta v. United States, 488 U.S. 361 (1989), it can

certainly be argued that the means by which the Guidelines

channeled the District Court's discretion in this case do not

implicate Apprendi. Put differently, the argument is that

while perhaps Apprendi will come to mean that the

enhancement for shooting Wessels violates the Constitution

because it increased Mack's maximum sentence under the

Guidelines, even if it did not do so under the statute, it has

not yet acquired that meaning.8

IV.

Having fleshed out the potential Apprendi problem in this

case, the fact is that neither Mack nor his counsel explicitly

raised the issue. While it is true that Apprendi had not

been decided at the time of the filing of the briefs in this

case, the argument was certainly available in light of Jones

v. United States, 536 U.S. 227 (1999). Dicta in Jones stated

that

_________________________________________________________________

8. I have acknowledged the plausibility of the argument that the ACCA

technically did not increase but rather determined Mack's sentence

because, in cases such as this one, a sentencing judge is not required

to "pass through" Section 924(a)(1) in order to get to Section 924(e) (the

ACCA). See supra III.A.2. But for the reasons explained above, collapsing

the two provisions into one does not alter the fact that they are

conceptually distinct steps in the Apprendi analysis.

31

under the Due Process Clause of the Fifth Amendment

and the notice and jury trial guarantees of the Sixth

Amendment, any fact (other than prior conviction) that

increases the maximum penalty for a crime must be

charged in an indictment, submitted to a jury, and

proven beyond a reasonable doubt.

Id. at 243 n.6. Although we doubtless have the power to do

so, "[w]e do not generally consider issues not raised by the

parties." Bolden v. Southeastern Pa. Transp. Auth., 953 F.2d

807, 812 (3d Cir.1991) (en banc). In light of our reluctance

to make binding decisions about issues not fully briefed

and argued by the parties, and because I am not certain

what the proper resolution of any Apprendi challenge to

Mack's sentence would be, I am content not to decide the

issue. Accordingly, I am satisfied to join in the opinion and

judgment of the Court.

I write separately with mixed emotions. In the wake of a

retroactively unsettling Supreme Court pronouncement

such as Bailey v. United States, 516 U.S. 137 (1995),9 I

have no desire for a repeat performance, or to contribute to

the constitutional haze enveloping the appropriate

relationship between judge and jury in our system of

criminal justice. I do, however, believe that it has been

useful to explore one aspect of the Apprendi problem with

which the judiciary will doubtless soon be required to

grapple. See supra note 1 (referencing recent Apprendi-

based filings in this Court).

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________

9. According to a Westlaw KeyCite performed August 30, 2000, Bailey

has aready been judicially cited 1893 times. It has also led to numerous

re-sentencing proceedings. See, e.g., United States v. Goggind, 99 F.3d

116, 117 (3d Cir. 1996) (involving a procedural posture where Bailey had

been decided while the case was originally on appeal, which necessitated

a remand for a new sentencing proceeding).

32