United States v. Cheek ( 2005 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 04-4445
CECIL EUGENE CHEEK,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Terry L. Wooten, District Judge.
(CR-03-1061)
Argued: May 27, 2005
Decided: July 19, 2005
Before NIEMEYER, WILLIAMS, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Williams and Judge Shedd joined.
COUNSEL
ARGUED: Michael Allen Meetze, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Flor-
ence, South Carolina, for Appellant. Mark C. Moore, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee. ON BRIEF: J. Strom Thur-
mond, Jr., United States Attorney, Columbia, South Carolina, Rose
Mary Parham, Assistant United States Attorney, Florence, South Car-
olina, for Appellee.
2 UNITED STATES v. CHEEK
OPINION
NIEMEYER, Circuit Judge:
The issue on appeal is whether the enhancement of a criminal
defendant’s sentence on the basis of three previous convictions vio-
lates his Sixth Amendment rights when the prior convictions were not
alleged in the indictment or admitted by the defendant during his plea
colloquy. We conclude that the defendant’s Sixth Amendment rights
were not so violated and accordingly affirm. See United States v.
Booker, 125 S. Ct. 738, 756 (2005) (reaffirming Apprendi v. New Jer-
sey, 530 U.S. 466 (2000), and holding that under the Sixth Amend-
ment, the fact of a prior conviction need not be submitted to the jury
or admitted by the defendant for it to serve as the basis for a sentence
enhancement).
I
Pursuant to his guilty plea, Cecil Eugene Cheek was convicted in
South Carolina of possessing marijuana with the intent to distribute
it, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D), and of pos-
sessing a firearm and ammunition as a convicted felon, in violation
of 18 U.S.C. §§ 922(g)(1), 924(a), and 924(e). The district court sen-
tenced Cheek to 190 months’ imprisonment, employing the Armed
Career Criminal Act, 18 U.S.C. § 924(e), and its corresponding provi-
sion in the Sentencing Guidelines, U.S.S.G. § 4B1.4, to enhance
Cheek’s sentence beyond the maximum of the otherwise applicable
sentencing range, because Cheek was a recidivist who had been con-
victed of at least three prior qualifying offenses.* The record shows,
and the district court took judicial notice, that Cheek had previously
been convicted in South Carolina state court of possession with intent
to distribute marijuana (1981); assault and battery of a high and
*Section 924(e) enhances the sentence for a violation of § 922(g) to a
term of imprisonment of not less than 15 years when the defendant has
"three previous convictions . . . for a violent felony or a serious drug
offense, or both, committed on occasions different from one another." 18
U.S.C. § 924(e)(1). Section 4B1.4 of the Sentencing Guidelines corre-
spondingly increases the defendant’s offense level and criminal history
category.
UNITED STATES v. CHEEK 3
aggravated nature (1990); four counts of distribution of marijuana
(1994); and possession with intent to distribute marijuana (2001).
Cheek does not challenge the existence of his prior convictions or
their qualification as predicate offenses under § 924(e).
II
On appeal, Cheek contends for the first time that since the fact of
his prior qualifying offenses was not alleged in the indictment to
which he pleaded guilty, his Sixth Amendment rights were violated
when his sentence was enhanced based on that fact. More specifically,
Cheek argues that the Sixth Amendment "requires that facts which
increase [his] sentence above the statutory maximum be pled in an
indictment and submitted to a jury for proof beyond a reasonable
doubt" and that this requirement "appl[ies] to prior convictions used
to enhance a sentence under a recidivist statute." While he acknowl-
edges that in Almendarez-Torres v. United States, 523 U.S. 224, 226
(1998), the Supreme Court held that the Constitution does not require
the government to plead the fact of a prior conviction in the indict-
ment, he maintains that the holding in Almendarez-Torres, even
though not since overruled, was called into question in Apprendi v.
New Jersey, 530 U.S. 466 (2000). See id. at 521 (Thomas, J., concur-
ring). Cheek argues that "[e]ven though Almendarez-Torres remains
intact, a valid argument exists that Apprendi applies to sentencing
pursuant to a recidivist statute, and that Blakely [v. Washington, 124
S. Ct. 2531 (2004),] has extended Apprendi to require that the fact of
a defendant’s prior convictions . . . be pled in an indictment and
proved to a jury beyond a reasonable doubt." Cheek claims that "it is
only a matter of time before the United States Supreme Court revisits
and overrules its holding in Almendarez-Torres" and that therefore we
should treat his prior convictions as elements of the offense under the
Armed Career Criminal Act. Of course, to succeed, Cheek must dem-
onstrate plain error. See Fed. R. Crim. P. 52(b).
In Almendarez-Torres, an alien pleaded guilty to having been
found in the United States after being deported, in violation of 8
U.S.C. § 1326(a). 523 U.S. at 227. That violation subjected
Almendarez-Torres to a maximum term of imprisonment of two
years. Section 1326(b), however, extends the maximum term of
imprisonment to 20 years if the prior "removal was subsequent to a
4 UNITED STATES v. CHEEK
conviction for commission of an aggravated felony." 8 U.S.C.
§ 1326(b)(2). Almendarez-Torres admitted that his earlier deportation
had taken place pursuant to three prior convictions for aggravated fel-
onies, but he argued that since his indictment had made no mention
of the earlier convictions, he could only be sentenced to a maximum
of two years. 523 U.S. at 227. The Supreme Court rejected that argu-
ment, concluding that the Sixth Amendment did not require that the
fact of prior convictions be treated as an element of Almendarez-
Torres’ offense. The Court explained that recidivism "is a traditional,
if not the most traditional, basis for a sentencing court’s increasing an
offender’s sentence," id. at 243, and "that recidivism ‘does not relate
to the commission of the offense, but goes to the punishment only,’"
id. at 244 (quoting Graham v. West Virginia, 224 U.S. 616, 629
(1912)) (emphasis omitted). The Court concluded that "to hold that
the Constitution requires that recidivism be deemed an ‘element’ of
petitioner’s offense would mark an abrupt departure from a long-
standing tradition of treating recidivism as ‘go[ing] to the punishment
only.’" Id. (quoting Graham, 224 U.S. at 629).
Two terms later, in Apprendi v. New Jersey, 530 U.S. 466 (2000),
the Supreme Court addressed the question of whether a factual deter-
mination under a New Jersey "hate crime" statute authorizing an
increase in the maximum prison sentence for an underlying state fire-
arm offense was required by the Constitution to be made by a jury on
the basis of proof beyond a reasonable doubt. See id. at 469. Answer-
ing that question in the affirmative, the Court established the rule 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
490 (emphasis added). Reaffirming its holding in Almendarez-Torres,
the Court explained that Almendarez-Torres "represents at best an
exceptional departure from the historic practice" of applying due pro-
cess and Sixth Amendment protections to determinations extending
the length of a defendant’s sentence beyond the maximum of the stat-
utory range. Id. at 487. The need for such protections was diminished
in Almendarez-Torres, the Court continued, because of "the certainty
that procedural safeguards attached to any ‘fact’ of prior conviction,
and the reality that Almendarez-Torres did not challenge the accuracy
of that ‘fact’ in his case." Id. at 488. Differentiating the New Jersey
"hate crime" law from recidivism-based enhancements, the Court
UNITED STATES v. CHEEK 5
stated that while "recidivism ‘does not relate to the commission of the
offense’ itself, New Jersey’s biased purpose inquiry goes precisely to
what happened in the ‘commission of the offense.’" Id. at 496 (quot-
ing Almendarez-Torres, 523 U.S. at 244). The Court explained:
[T]here is a vast difference between accepting the validity
of a prior judgment of conviction entered in a proceeding in
which the defendant had the right to a jury trial and the right
to require the prosecutor to prove guilt beyond a reasonable
doubt, and allowing the judge to find the required fact under
a lesser standard of proof.
Id.
Finally this year, the Supreme Court again reaffirmed the
Almendarez-Torres exception for recidivism-based enhancements in
sentencing. See United States v. Booker, 125 S. Ct. 738, 756 (2005)
("reaffirming [its] holding in Apprendi" and incorporating the
Almendarez-Torres recidivism exception); cf. Shepard v. United
States, 125 S. Ct. 1254, 1263 (2005) (addressing the scope of the
recidivism exception).
It is thus clear that the Supreme Court continues to hold that the
Sixth Amendment (as well as due process) does not demand that the
mere fact of a prior conviction used as a basis for a sentencing
enhancement be pleaded in an indictment and submitted to a jury for
proof beyond a reasonable doubt. Even were we to agree with
Cheek’s prognostication that it is only a matter of time before the
Supreme Court overrules Almendarez-Torres, we are not free to over-
rule or ignore the Supreme Court’s precedents. See State Oil Co. v.
Kahn, 522 U.S. 3, 20 (1997) ("[I]t is [the Supreme] Court’s preroga-
tive alone to overrule one of its precedents"). This is so even if it
appears that "‘changes in judicial doctrine’ [have] significantly under-
mined" a prior holding. United States v. Hatter, 532 U.S. 557, 567
(2001) (quoting Hatter v. United States, 64 F.3d 647, 650 (Fed. Cir.
1995)); see also Rodriguez de Quijas v. Shearson/Am. Express, Inc.,
490 U.S. 477, 484 (1989).
III
Moreover, several sound reasons may explain why the
Almendarez-Torres recidivism exception has not been overruled.
6 UNITED STATES v. CHEEK
First, recidivism involves the status of a defendant as a repeat
offender based on past convictions and not the offense being tried
before the court. See Oyler v. Boles, 368 U.S. 448, 452 (1962).
Indeed, recidivism would generally be irrelevant to the conduct being
tried, as it results only in a more severe punishment for a defendant
who is a habitual offender. As the Supreme Court observed in
Almendarez-Torres, proof of the fact of a prior conviction is not nec-
essary to establish that the defendant’s conduct failed to conform with
the prescriptive language of the criminal statute at hand, but rather is
"distinct" and "does not relate to the commission of the offense." 523
U.S. at 244 (quoting Graham, 224 U.S. at 629) (internal quotation
marks omitted).
Second, and related to the first point, a prior conviction has already
been determined in accordance with the safeguards of due process and
the Sixth Amendment and need not be subjected to a jury for a second
time. See Jones v. United States, 526 U.S. 227, 249 (1999) (distin-
guishing recidivism on this basis). As a product of our judicial admin-
istration, the fact of conviction is of record and needs only to be
judicially noticed or otherwise summarily demonstrated to the court
to become part of the sentencing proceedings. Cf. Shepard, 125 S. Ct.
at 1263 (limiting judicial notice of a prior conviction when the fact
of a prior conviction or its qualification as a predicate offense is dis-
puted).
Third, if prior convictions were generally made elements of crimi-
nal offenses, the introduction of a prior conviction at trial could
unfairly prejudice the defendant. See Old Chief v. United States, 519
U.S. 172, 191 (1997); Spencer v. Texas, 385 U.S. 554, 560 (1967).
Yet, the government has a legitimate interest, apart from punishing a
defendant for a particular offense, in having habitual criminals pun-
ished more severely during the sentencing process. As the Supreme
Court has noted:
States have a valid interest in deterring and segregating
habitual criminals. We have said before that a charge under
a recidivism statute does not state a separate offense, but
goes to punishment only. And we have repeatedly upheld
recidivism statutes "against contentions that they violate
constitutional strictures dealing with double jeopardy, ex
UNITED STATES v. CHEEK 7
post facto laws, cruel and unusual punishment, due process,
equal protection, and privileges and immunities."
Parke v. Raley, 506 U.S. 20, 27 (1992) (citations omitted).
And fourth, it has been the longstanding custom for over 200 years
to treat recidivism as a sentencing factor, and not as an element of the
instant offense. See Jones, 526 U.S. at 249 (noting "the tradition of
regarding recidivism as a sentencing factor"); Almendarez-Torres,
523 U.S. at 243 (referring to recidivism as "the most traditional" basis
for a sentencing enhancement); Parke, 506 U.S. at 26 (noting that
recidivism statutes have had "a long tradition in this country that dates
back to colonial times"); see also Oyler, 368 U.S. at 451 & n.5; Gra-
ham, 224 U.S. at 629.
It is thus abundantly clear that the Sixth Amendment (as well as
due process) does not demand that the mere fact of a prior conviction
used as a basis for a sentencing enhancement be pleaded in an indict-
ment and submitted to a jury for proof beyond a reasonable doubt.
Accordingly, we affirm.
AFFIRMED