United States v. Nigg

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2340

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

S TEVEN J. N IGG,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 10-CR-273—William C. Griesbach, Judge.

A RGUED D ECEMBER 1, 2011—D ECIDED JANUARY 31, 2012

Before E ASTERBROOK, Chief Judge, C UDAHY, Circuit

Judge, and P RATT, District Judge.Œ

P RATT, District Judge. Under the Armed Career

Criminal Act (“ACCA”), any person convicted of being

a felon in possession of a firearm who has “three

Œ

The Honorable Tanya Walton Pratt, District Judge for the

United States District Court for the Southern District of

Indiana, is sitting by designation.

2 No. 11-2340

previous convictions . . . for a violent felony . . . committed

on occasions different from one another” is subject to

a mandatory minimum prison term of fifteen years. 18

U.S.C. § 924(e)(1). On June 6, 2011, the district judge in

this case sentenced Steven J. Nigg—who has three

prior felony armed robbery convictions, all of which

stem from a crime spree that occurred more than thirty-

five years ago—to the mandatory minimum sentence

under the ACCA, to be followed by three years of super-

vised release. See 18 U.S.C. §§ 922(g) and 924(e)(1).

Months prior to being sentenced, Nigg pled guilty to

the charge of possession of a firearm by a felon, but

reserved the right to challenge his status as an Armed

Career Criminal (“ACC”). Initially, the district judge

expressed misgivings about the fairness of a fifteen-

year sentence, but nonetheless found that Nigg qualified

as an ACC. On appeal, Nigg raises a wide variety of

arguments challenging his sentence. For the following

reasons, we affirm the sentence imposed by the district

judge.

I. Background

In November 1976, at the age of twenty-one, Nigg and

his cohort, Dennis Oberheim, embarked on an extensive

Arizona crime spree which included at least three armed

robberies. On November 3, 1976, Nigg and Oberheim

robbed a motel clerk at gunpoint and stole $372.75.

The next day, the men robbed two convenience store

clerks at gunpoint, making off with $100.00. On

November 8, 1976, the duo robbed a gas station, taking a

No. 11-2340 3

pair of gloves, a pack of Kool cigarettes, and $197.72.

On March 9, 1977, roughly four months later, Nigg was

convicted of three counts of armed robbery with a gun

in Maricopa County, Arizona. He received a concurrent

sentence of fifteen to thirty years in prison on each

armed robbery count, and additional charges were dis-

missed as part of a plea agreement.

Following his release from prison in 1990, Nigg

walked a more straight and narrow path. He moved to

Wisconsin, where he cared for his father’s ailing wife

until she died. Following her death, Nigg continued to

live with his father, until he remarried. Nigg also con-

tributed to his community. Prior to sentencing, the

district judge received “numerous letters of support

testifying to Nigg’s kind and generous character, his

willingness to help neighbors, and his involvement in

community activities, notably marital arts classes for

youth and annual appearances as a volunteer Santa

Claus and Easter Bunny.” But, even after his release,

Nigg’s behavior was less than saintly. Specifically,

between 1990 and his father’s death in 2009, Nigg

received two misdemeanor convictions which resulted

in fines—criminal damage to property in 1998 and ob-

structing an officer in 2003. Nigg also failed to pay a

series of tax warrants filed by the State of Wisconsin.

In 2009, however, Nigg’s life took a sharp turn for the

worse. His father passed away, and he became executor

of the estate. In a somewhat cruel twist of fate, the

estate included over 120 firearms. Nigg’s stepmother

soon became suspicious that Nigg was selling firearms

4 No. 11-2340

in violation of the probate court’s restraining order. Wary

that Nigg was depleting assets, she hired a private in-

vestigator to attempt to purchase firearms. On Septem-

ber 4, 2009, the investigator entered Nigg’s consign-

ment shop (which he ran out of his home) and pur-

chased two rifles from Nigg for $1,600.00. Thereafter,

the investigator and Nigg’s stepmother disclosed the

results of their sting operation to agents from the Bureau

of Alcohol, Tobacco, Firearms and Explosives (“ATF”).

The ATF’s subsequent investigation resulted in

Nigg’s arrest and indictment. Specifically, the ATF agent

learned that, during Nigg’s transaction with the private

investigator, Nigg showed the investigator a printed list

of firearms from his father’s estate. Notations on the

list indicated that some of the guns had been sold and

some had been shipped to an auction house in

Maine. Moreover, the ATF agent reviewed a deposition

transcript taken in a civil action that Nigg’s stepmother

commenced against the estate. During his deposition,

Nigg testified that, in his capacity as executor, he had

decided to sell some his father’s guns and divide the

proceeds among the named beneficiaries.

On December 14, 2010, a federal grand jury in the

Eastern District of Wisconsin returned a one-count indict-

ment charging Nigg with possession of firearms by a

convicted felon as an ACC, in violation of 18 U.S.C.

§§ 922(g)(1) and 924(e). As noted above, the ACCA

imposes a fifteen-year mandatory minimum sentence

on an offender who has three previous convictions “for

a violent felony . . . committed on occasions different

from one another.” 18 U.S.C. § 924(e)(1).

No. 11-2340 5

On January 19, 2011, Nigg pled guilty to the felon

in possession charge, but reserved the right to challenge

his status as an ACC. On May 5, 2011, in a written

opinion, the district judge rejected these challenges. In

doing so, however, the district judge expressed “moral

concerns” about the overall fairness of a fifteen-year

sentence, highlighting the following considerations:

Nigg is 55 years old; he had a difficult childhood; and

“the predicate offenses for Nigg’s ACC designation are

almost thirty-five years old . . . [and] he appears to have

led a substantially crime-free and, in some respects,

exemplary life since he was released from prison in

1990[.]” Nonetheless, the district judge recognized that

his hands were tied by mandatory minimum sentence

terms, writing that “[b]ecause Nigg qualifies as an

ACC, the Court is required by law to impose a sentence

of at least fifteen years no matter what its own views

may be.” But because of his initial misgivings about

the harshness of the sentence, the district judge invited

the government to voluntarily file supplemental briefing

explaining why it was seeking a seemingly draconian

sentence under the ACCA.

Apparently, the government’s supplemental briefing

(which chronicled the full extent of Nigg’s 1976 crime

spree and many of his questionable post-release deci-

sions) assuaged the district judge’s concerns. At sen-

tencing, the district judge commented that Nigg’s

character “isn’t as . . . clean and as reputable as certainly

my initial request for supplemental briefing suggested.”

Among other things, the government emphasized that

“[f]or the past 15-20 years, Nigg has possessed several

6 No. 11-2340

guns that were not part of his father’s estate,” and “[h]e

has refused to turn over these guns or reveal their loca-

tion.” Finally, on June 6, 2011, the district judge

imposed the fifteen-year mandatory minimum prison

term to be followed by three years of supervised

release, thus giving rise to this appeal.

II. Analysis

It is difficult to overstate the ramifications of Nigg’s

status as an ACC. Simple possession of a firearm by a

felon is punishable by a term of imprisonment not to

exceed ten years. 18 U.S.C. § 924(a)(2). An ACC charged

with possession of a firearm, by contrast, is subject to

a mandatory minimum sentence of fifteen years in

prison and a maximum of life. 18 U.S.C. § 924(e)(1).

Faced with this comparatively harsh punishment, Nigg

makes a diverse array of arguments challenging his

sentence. Specifically, Nigg contends that his sentence

violates the separation of powers doctrine, the Due

Process Clause of the Fifth Amendment, his Sixth

Amendment right to a jury trial, and the Eighth Amend-

ment’s protections against cruel and unusual punish-

ment. Nigg also argues that the ACCA does not apply

because of the timing and nature of his prior Arizona

felony convictions.

At oral arguments, Nigg’s counsel seemingly conceded

that, given the current state of the law, at least some of

his arguments were destined to fail. Nonetheless,

counsel expressed optimism that a loss before this

No. 11-2340 7

Court would be a mere bump in the road on the way to

a hard-fought victory at the United States Supreme

Court. In at least one respect, counsel’s intuition was

correct: none of the above arguments carry the day

before this Court. Finally, where, as here, the arguments

involve legal questions (including constitutional chal-

lenges), we conduct a de novo review. United States v.

Figueroa-Espana, 511 F.3d 696, 705 (7th Cir. 2007).

A. Separation of Powers.

Nigg’s separation of powers argument goes as follows:

giving prosecutors unfettered discretion to use prior

convictions against defendants robs the judiciary of

discretion, thus violating the separation of powers doc-

trine. Along these lines, many judges and academics

have vociferously criticized the rigidity of mandatory

minimum sentences, arguing that they amount to a legis-

lative encroachment on the judiciary’s territory. See, e.g.,

United States v. Sidhom, 144 F. Supp. 2d 41, 41 (D. Mass.

2001) (“[T]he government . . . now has the power to

determine the severity of the punishment. As a result,

courts are required to react passively as automatons and

to impose a sentence which the judge may personally

deem unjust.”); United States v. Patillo, 817 F. Supp. 839,

841 (C.D. Cal. 1993) (“I . . . will no longer apply this

law without protest, and with no hope for change. Statu-

tory mandatory minimum sentences create injustice

because the sentence is determined without looking at

the particular defendant.”); Erik Luna & Paul G. Cassell,

Mandatory Minimalism, 32 C ARDOZO L. R EV. 1, 1 (2010)

8 No. 11-2340

(“A mandatory minimum deprives judges of the

flexibility to tailor punishment to the particular facts of

the case and can result in an unduly harsh sentence.”);

John S. Martin, Jr., Why Mandatory Minimums Make No

Sense, 18 N OTRE D AME J.L. E THICS & P UB. P OL’Y 311, 312

(2004) (“The reason the judges are opposed to mandatory

minimums is not that they are power hungry but

rather that they see on a day-to-day basis the injustice

that results from inflexibility in sentencing, whether it

be a result of mandatory minimums or the result of a

restriction of judicial discretion under the sentencing

guidelines.”). The United States Sentencing Commission

recently joined in this chorus of criticism. See United

States Sentencing Commission, Report to the Congress:

Mandatory Minimum Penalties in the Federal Criminal Justice

System 368 (Oct. 2011), http://www.ussc.gov/Legislative_

and_Public_Affairs/ Congressional_Testimony_and_

Reports/Mandatory_Minimum_Penalties/20111031_RtC_

Mandatory_Minimum.cfm. (last visited Jan. 23, 2012)

(“[M]andatory minimum penalties . . . should (1) not be

excessively severe, [and] (2) be narrowly tailored to

apply only to those offenders who warrant such punish-

ment . . . .”). Tracking this criticism, Nigg argues that

“[b]y seeking to apply the enhanced sentence in this

case, the Court’s role with respect to sentencing was

terminated and the prosecutor decided what sentence

to impose.”

Nigg’s policy arguments may be fertile ground for a

vigorous debate where reasonable minds can disagree.

Given the state of the law, however, such debate is little

more than academic fodder. It is well-settled that “Con-

No. 11-2340 9

gress has the power to define criminal punishments

without giving the courts any sentencing discretion[,]” as

“[d]eterminate sentences were found in this country’s

penal codes from its inception[.]” Chapman v. United States,

500 U.S. 453, 467 (1991) (citations omitted). As this Court

recently recognized, “We have rejected separation of

powers challenges to mandatory minimum sentences,

and we see no reason to revisit that holding here.” United

States v. Brucker, 646 F.3d 1012, 1019 (7th Cir. 2011); see

also United States v. Carraway, 612 F.3d 642, 646-47 (7th

Cir.2010) (rejecting as meritless the argument that a

mandatory life sentence for dealing crack cocaine violates

the doctrine of separation of powers); United States v.

MacEwan, 445 F.3d 237, 252 (3d Cir. 2006) (“Mandatory

minimum sentencing provisions do restrict, or in

some cases strip, the courts of the power to impose

an individually-crafted sentence for a specific defendant;

nevertheless, we cannot agree that the use of mandatory

minimums violates the doctrine of separation of pow-

ers.”). The reasoning in these cases applies with equal

force here.

B. Fifth Amendment Due Process.

Next, Nigg argues that the mandatory minimum sen-

tence scheme under the ACCA violates his Fifth Amend-

ment Due Process right to an individualized sentence

determination. To bolster this contention, Nigg relies

heavily on United States v. Dyck, 287 F. Supp. 2d 1016

(D.N.D. 2003) for the proposition that “[t]he concept of

individualized sentencing is deeply rooted in legal tradi-

10 No. 11-2340

tion and is a fundamental liberty interest.” Id. at 1021.

Notably, the district judge’s opinion in Dyck was written

as a dissent after a reversal by the Eighth Circuit Court

of Appeals. Id. at 1017.

As discussed, in some instances, mandatory minimum

sentences prevent a judge from fashioning a sentence

for a particular defendant based on that defendant’s

unique characteristics. See Patillo, 817 F. Supp. at 842

(under the mandatory minimum approach, it makes

no difference whether the “defendant has rescued

fifteen children from a burning building, or had won

the Congressional Medal of Honor”). Importantly, this

Court has never recognized a constitutional right to

individualized sentencing in non-capital cases. As stated

in United States v. Smith, 953 F.2d 1060 (7th Cir. 1992), “a

sentencing scheme ‘not considering individual degrees

of culpability would clearly be constitutional.’ ” Id. at

1065 (quoting Chapman, 500 U.S. at 467); see also United

States v. Franklin, 547 F.3d 726, 735 (7th Cir. 2008) (“[T]he

Supreme Court and this court have consistently held

that mandatory minimum sentences are not a violation

of a defendant’s due process rights.”).

Nigg argues that this all changed in the wake of

United States v. Booker, 543 U.S. 220 (2005), because sen-

tencing guidelines are now advisory, not mandatory.

Nigg argues that it inescapably follows that district

judges must be given discretion to determine whether

a sentence is appropriate for a particular defendant. But,

the district judge gave Nigg a mandatory minimum sen-

tence. We have consistently rejected the argument that

No. 11-2340 11

mandatory minimums are incompatible with Booker:

“Nothing in Booker gives a judge any discretion to disre-

gard a mandatory minimum.” United States v. Lee, 399

F.3d 864, 866 (7th Cir. 2005); Brucker, 646 F.3d at 1016 (“We

have stated on numerous occasions that Booker has no

effect on statutory minimum sentences . . . .”). For these

reasons, Nigg’s Fifth Amendment arguments (and his

similar arguments relating to judicial discretion) fail.

C. Sixth Amendment Right to a Jury Trial.

Nigg also argues that because his prior convictions

were not proven to a jury beyond a reasonable doubt, the

use of those convictions violates his Sixth Amendment

right to a jury trial. Nigg acknowledges that this argu-

ment collides head-on with Supreme Court precedent.

See Almendarez-Torrez v. United States, 523 U.S. 224 (1998);

see also United States v. Thornton, 463 F.3d 693, 699-700

(7th Cir. 2006) (rejecting the claim “that the jury was

required to pass on the existence of all qualifying con-

victions” under the ACCA); United States v. Salahuddin,

509 F.3d 858, 863 (7th Cir. 2007) (“A prior conviction

need not be put to a jury before it may be used to

enhance a defendant’s sentence.”). The Supreme Court’s

decision in Almendarez-Torrez remains intact; therefore,

we reject Nigg’s argument.

D. Did Nigg’s Prior Convictions Qualify as Three

Violent Felonies?

Nigg next argues that the district judge erred when

determining that the government met its burden of

12 No. 11-2340

proof to establish the existence of three prior violent

felonies to warrant application of the ACCA. In support

of this claim, Nigg makes two basic sub-arguments.

First, Nigg argues that his three prior felony convic-

tions—all based on armed robberies that occurred

within a six-day window—should not be viewed as three

separate episodes. Rather, they should be viewed as

a single episode because each robbery was part and

parcel of a single crime spree. To reiterate, under the

ACCA, the violent felonies at issue must be “committed

on occasions different from one another.” 18 U.S.C.

§ 924(e)(1). To determine whether the felonies were

committed on different occasions, the operative test

analyzes whether the crimes were committed sequentially

or simultaneously. United States v. Hudspeth, 42 F.3d 1015,

1021 (7th Cir. 1994) (en banc) (defendant committed

three separate violent felonies under the ACCA when

he broke into three separate businesses located in a

strip mall within thirty-five minutes); United States v.

Thomas, 280 F.3d 1149, 1159 (7th Cir. 2002) (robberies

were committed on different occasions because they

occurred on different dates and involved different vic-

tims). In sum, “[c]ases interpreting the ACCA clearly

uphold the minimum fifteen-year sentence enhance-

ment for criminals who commit separate crimes against

different individuals while on a spree, within a short

period of time, provided that the perpetrator had the

opportunity to cease and desist from his criminal actions

at any time.” Hudspeth, 42 F.3d at 1020.

Using this standard, Nigg’s crimes were obviously

committed in a sequential fashion, as it is physically

No. 11-2340 13

impossible for one person to commit three armed

robberies simultaneously at three different locations

against three different victims on three different

dates. In this sense, Nigg’s circumstances are easily distin-

guishable from the cases on which he relies. See, e.g., United

States v. Fuller, 453 F.3d 274, 278-79 (5th Cir. 2006) (court

could not determine “as a matter of law that the

burglaries occurred on different occasions” where there

was evidence that defendant and his friend entered

two different buildings simultaneously).

Nigg next contends that his prior convictions for

armed robbery with a gun do not constitute “violent

felonies” under the ACCA. Specifically, the ACCA

defines a “violent felony” as follows:

any crime punishable by imprisonment for a term

exceeding one year . . . that . . . (i) has as an ele-

ment the use, attempted use, or threatened use of

physical force against the person of another; or (ii) is

burglary, arson, or extortion, involves use of explo-

sives, or otherwise involves conduct that presents a

serious potential risk of physical injury to another[.]

18 U.S.C. § 924(e)(2)(B).

The crux of Nigg’s argument is that because Dennis

Oberheim was the leader of the crime spree, the nature

and extent of Nigg’s involvement is unclear, and it

would be speculative to classify his prior convictions as

violent felonies without additional judicial fact-finding.

This argument rests on a faulty premise: that the classi-

fication of the conviction isn’t all that important. To the

contrary, we employ a “categorical” approach when

14 No. 11-2340

determining whether a crime is a violent felony. United

States v. Fife, 624 F.3d 441, 445 (7th Cir. 2010); Begay

v. United States, 553 U.S. 137, 141 (2008) (“In determining

whether this crime is a violent felony, we consider

the offense generically, that is to say, we examine it in

terms of how the law defines the offense and not in

terms of how an individual offender might have com-

mitted it on a particular occasion.”).

Under this approach, we first identify the offense

involved and then focus on “the particular elements of

the statutory offense, without consideration of the under-

lying facts of the individual case.” Fife, 624 F.3d at 445.

But some statutes may be violated in several different

ways, “such as a statute which creates more than

one crime or one that defines one crime with multiple

enumerated modes of commission.”Id. (citations omitted).

And, at times, the statute may be violated in a way

that does not constitute a violent felony under the

ACCA. Id. When this situation arises, it becomes critical

to “determine precisely which offense is involved within

that statutory scheme.” Id. Under these conditions, courts

may employ a more searching “ ‘modified categorical

approach’ to determine the statutory offense at issue.” Id.

This “modified” approach allows a court to review a

limited universe of documents, such as the charging

document, the plea agreement, or the transcript of the

colloquy between the judge and the defendant. Id. Even

under the “modified” approach, however, “the inquiry

must remain an objective one,” focused on the offense

itself, not the individual’s actions. Id.

No. 11-2340 15

Here, we need not venture into the modified categorical

approach. In 1976, Arizona defined “robbery” as the

“felonious taking of personal property in the possession

of another from his person, or immediate presence, and

against his will, accomplished by means of force or fear.”

A RIZ. R EV . S TAT. A NN. § 13-641 (1956). And if the robbery

was “committed by a person armed with a gun,” it was

punished with a minimum prison term determined by

whether it was a first, second, or subsequent offense. A RIZ.

R EV . S TAT. A NN. § 13-643(B) (1956). Moreover, by 1976,

Arizona had abolished the distinction between ac-

complices before-the-fact and principals, treating “all

persons concerned in the commission of a crime” as

principals. A RIZ. R EV. S TAT. A NN. §§ 13-138 to 140 (1956).

Nigg’s only colorable argument is that the last disjunc-

tive phrase of the Arizona robbery statute, “or fear,”

does not necessarily involve “the use, attempted use, or

threatened use of physical force.” However, we have

squarely rejected similar arguments in the past. See

United States v. Tirrell, 120 F.3d 670, 680-81 (7th Cir. 1997)

(“attempted unarmed robbery” under Michigan law

qualified as a violent felony under the ACCA; “under

Michigan law, the element of putting in fear means threat-

ening the use of physical force against the person of

another”); see also Thomas, 280 F.3d at 1159 (“robbery by

intimidation” under Georgia law qualified as a violent

felony); United States v. Dickerson, 901 F.2d 579, 584 (7th

Cir. 1990) (“robbery” under Illinois law qualified as a

violent felony). More importantly, this argument ignores

the fact that Nigg was convicted of three counts of armed

robbery with a gun. Introducing a gun into a robbery

16 No. 11-2340

necessarily creates a fear of physical injury to the victim.

See United States v. Taylor, 179 Fed. Appx. 957, 961 (7th

Cir. 2006) (“The two armed robberies are unquestionably

‘violent felonies’ under Section 924(e)(1) . . . .”). So far

as the record and the Arizona statutes are concerned,

Nigg directly committed each of the armed robberies.

Without further belaboring the point, suffice it to say

that armed robbery with a gun clearly fits the bill for

a violent felony under 18 U.S.C. § 924(e)(2)(B)(i).

E. Eighth Amendment.

Finally, Nigg argues that a fifteen-year sentence is so

grossly disproportionate to his crime that it constitutes

cruel and unusual punishment under the Eighth Amend-

ment. The Supreme Court has recognized that “[t]he

Eighth Amendment, which forbids cruel and unusual

punishment, contains a narrow proportionality principle

that applies to noncapital sentences.” Ewing v. California,

538 U.S. 11, 20 (2003) (citations and internal quotations

omitted). But “narrow” does not equate to strict propor-

tionality. Id. Only extreme sentences that are “grossly

disproportionate” to the crime will be deemed cruel

and unusual. Id.

In determining whether a sentence was grossly dispro-

portionate, the Supreme Court has outlined a three-

factor test, which considers: (1) “the gravity of the

offense and the harshness of the penalty”; (2) “the sen-

tences imposed on other criminals in the same jurisdic-

tion”; and (3) “the sentences imposed for commission of

the same crime in other jurisdictions.” Solem v. Helm,

No. 11-2340 17

463 U.S. 277, 292 (1983). The first factor is a threshold

factor; if an inference of gross disproportionality is not

established, the analysis ends there. United States v.

Gross, 437 F.3d 691, 692-93 (7th Cir. 2006).

A quick review of the case law strongly reinforces

that the first factor generally presents an insurmountable

bar. “Outside the context of capital punishment, suc-

cessful challenges to the proportionality of particular

sentences have been exceedingly rare.” Rummel v.

Estelle, 445 U.S. 263, 272 (1980); see, e.g., Ewing, 538 U.S. 11,

28-30 (affirming sentence of twenty-five years to life

imposed for felony grand theft of three golf clubs under

three strikes law); Lockyer v. Andrade, 538 U.S. 63, 73-77

(2003) (upholding sentence of fifty years to life for two

shoplifting incidents involving nine videotapes under

three strikes law); Harmelin v. Michigan, 501 U.S. 957, 961

(1991) (affirming life in prison without the possibility

of parole for first-time offender possessing 672 grams of

cocaine); Hutto v. Davis, 454 U.S. 370, 370-71 (1982) (no

constitutional error with forty-year sentence for posses-

sion with intent to distribute and distribution of approxi-

mately nine ounces of marijuana); Rummel, 445 U.S. at

265-66 (upholding life in prison without the possibility

of parole under three strikes law where triggering

offense was obtaining $120.75 by false pretenses and

the loss amount of the two previous fraud felonies was

$80.00 and $28.36, respectively); but see Solem, 463 U.S.

at 296-97 (Eighth Amendment prohibited a sentence of

life without the possibility of parole where the

defendant had previously committed six “minor” and

“nonviolent” felonies and his triggering offense was

uttering a “no account” check for $100.00).

18 No. 11-2340

Under the circumstances, the decision in United States

v. Hayes, 919 F.2d 1262 (7th Cir. 1990) is particularly

instructive. In that case, Hayes faced a mandatory mini-

mum of fifteen years’ imprisonment under the ACCA

after purchasing two shotguns and two pistols from a

licensed dealer. Id. at 1263-64. Two of his predicate con-

victions were over thirty years old (two armed robberies

that occurred within hours of each other), and the other

was more than fifteen years old (aggravated battery of

a police officer). Id. at 1265. In rejecting Hayes’s Eighth

Amendment challenge, “this court has on numerous

occasions held that ‘a mandatory minimum sentence

of fifteen years for a defendant with three prior felony

convictions (and who has now been convicted of yet

another felony) is not constitutionally disproportionate.’ ”

Id. at 1265 (quoting United States v. Dombrowski, 877

F.2d 520, 526 (7th Cir. 1989), cert. denied, 496 U.S. 907, 110

S.Ct. 2592, 110 L.Ed.2d 272 (1990); United States v. Sanchez,

859 F.2d 483, 486 (7th Cir. 1988), cert. denied, 489 U.S. 1021,

109 S.Ct. 1144, 103 L.Ed.2d 204 (1989)). It is clear that,

under this precedent, Nigg’s circumstances do not give

rise to an inference of gross disproportionality.

Nigg counters that Booker has fundamentally altered

the proportionality analysis because it requires district

courts to consider the sentencing objectives and factors

under 18 U.S.C. § 3553. But, importantly, Booker did

nothing to alter the legal landscape of the Eighth Amend-

ment. Applying binding precedent, we reject Nigg’s

Eighth Amendment arguments. See United States v. Moore,

643 F.3d 451, 456 (6th Cir. 2011) (“[W]e are aware of no

court of appeals decision that has struck down the Armed

No. 11-2340 19

Career Criminal Act as violative of the Eighth Amend-

ment.”).

III. Conclusion

Reasonable minds can and do disagree on the propriety

of mandatory minimum sentences. And, here, we have

some sympathy for Mr. Nigg, whose dangerous past

caught up with him decades after he had seemingly done

some work to rehabilitate himself. Nonetheless, the

ACCA is the law of the land, and “[p]unishment for

federal crimes is a matter for Congress, subject to judicial

veto only when the legislative judgment oversteps con-

stitutional bounds.” Warden, Lewisberg Penitentiary v.

Marreto, 417 U.S. 653, 664 (1974). In other words, Nigg’s

arguments are largely directed to the wrong branch of

government; relief from any unfairness flowing from

mandatory minimum sentences must come from the

legislature, not the judiciary. MacEwan, 445 F.3d at 252.

For the foregoing reasons, Nigg’s sentence is A FFIRMED.

1-31-12