United States v. Rodney Pettigrew , 488 F. App'x 181 ( 2012 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-1370
___________________________
United States of America
lllllllllllllllll Plaintiff - Appellee
v.
Rodney Pettigrew
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Missouri
____________
Submitted: September 17, 2012
Filed: September 28, 2012
[Unpublished]
____________
Before BYE, GRUENDER, and SHEPHERD, Circuit Judges.
____________
PER CURIAM.
Rodney Pettigrew pleaded guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). The district court1 concluded Pettigrew was an
armed career criminal and sentenced him to 180 months of imprisonment. See 18
1
The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.
U.S.C. § 924(e)(1). Pettigrew now contends the district court erred by counting his
juvenile adjudication for first-degree robbery as a predicate offense under the Armed
Career Criminal Act (ACCA). We affirm.
Pettigrew argues counting his first-degree robbery conviction as a predicate
offense violates his Sixth Amendment right to a jury's determination of every fact
necessary to his guilt. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
Missouri family courts do not employ juries. Therefore, because his adjudication was
not obtained by a jury, Pettigrew argues the district court violated Apprendi when it
counted his juvenile adjudication as a predicate offense in applying § 924(e)(1). He
also argues the district court violated the Sixth Amendment by sentencing him based
upon prior convictions that were not charged in the indictment, presented to a federal
jury for consideration, and found beyond a reasonable doubt.
We apply de novo review to constitutional questions. United States v. Lopez-
Zepeda, 466 F.3d 651, 655 (8th Cir. 2006).
As Pettigrew acknowledges, Appellant's Br. 10-12, we have previously
considered and rejected these arguments. In United States v. Smalley, 294 F.3d 1030,
1033 (8th Cir. 2002), we concluded although "a jury does not have a role in trials for
juvenile offenses, we do not think that this fact undermines the reliability of such
adjudications in any significant way." We therefore held juvenile adjudications may
properly be counted as "prior convictions" for ACCA purposes. Id. Eighth Circuit
precedent "prohibits any three-judge panel of the Court from overruling a previous
panel opinion." United States v. Wilson, 315 F.3d 972, 973-74 (8th Cir. 2003).
Pettigrew's argument is therefore foreclosed by our holding in Smalley.
Likewise, we have affirmed the continuing validity of Almendarez-Torres v.
United States, 523 U.S. 224 (1998), as an exception to the rule announced in
Apprendi. See United States v. Sohn, 567 F.3d 392, 394 (8th Cir. 2009); United
-2-
States v. Strong, 415 F.3d 902, 906-07 (8th Cir. 2005). In Almendarez-Torres, the
Supreme Court concluded recidivism, as a basis for an enhanced sentence, is not an
element of the offense, and instead "goes to the punishment only." 523 U.S. at 244(alteration, internal quotation marks, and citation omitted). Because recidivism is a
penalty provision and not a separate crime, the government need not charge the fact
of a prior conviction in the indictment or prove it beyond a reasonable doubt to a jury.
Id. at 226-27. Subsequent Supreme Court cases have not altered this conclusion.
United States v. Booker, 543 U.S. 220, 244 (2005); Apprendi, 530 U.S. at 490. Our
circuit precedent recognizes as much. Sohn, 567 F.3d at 394; United States v.
Campbell, 270 F.3d 702, 708 (8th Cir. 2001) (concluding a determination of whether
a previous conviction constitutes a "violent felony" under § 924(e)(1) falls within the
"prior conviction" exception to the rule announced in Apprendi). The district court
correctly applied these precedents.
We affirm.
______________________________
-3-