United States v. Floyd Evans , 738 F.3d 935 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-1914
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Floyd A. Evans
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: November 18, 2013
Filed: January 2, 2014
[Published]
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Before SHEPHERD, BOWMAN, and BEAM, Circuit Judges.
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PER CURIAM.
Floyd Evans pleaded guilty of being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(a) and 924(e)(1). The district court1 determined that
1
The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
Evans was an armed career offender, based on his three previous convictions,2 and
sentenced him to 180 months' imprisonment, pursuant to § 924(e)(1). On appeal
Evans argues that (1) the residual clause of the Armed Career Criminal Act
("ACCA"), § 924(e), is unconstitutionally vague; (2) the district court violated his
Sixth Amendment rights by concluding that his two domestic violence convictions
were committed on different occasions; and (3) the application of the enhancement
violated Evans's Sixth Amendment rights because the prior convictions were not
charged in the indictment, proven beyond a reasonable doubt to a jury or admitted by
Evans.
Having jurisdiction pursuant to 28 U.S.C. § 1291, we review Evans's claims de
novo. United States v. Brown, 734 F.3d 824, 825, 827 (8th Cir. 2013) (reviewing de
novo whether a prior conviction qualifies as a predicate offense under the ACCA and
constitutional claims). Evans advances claims nearly identical to those raised in
United States v. Ramsey, 498 F. App'x 653, 653-54 (8th Cir.) (per curiam), cert.
denied, 133 S. Ct. 2784 (2013), and for the same reasons discussed in Ramsey, we
affirm the district court.
Relying on Justice Scalia's dissents in Sykes v. United States, 131 S. Ct. 2267,
2287-88 (2011), and Derby v. United States, 131 S. Ct. 2858, 2859-60 (2011), Evans
contends that § 924(e)(1) is unconstitutionally vague. We find no merit in Evans's
argument, as both the Supreme Court and our court have rejected this argument. See
James v. United States, 550 U.S. 192, 210 n.6 (2007) ("[W]e are not persuaded by
Justice Scalia's suggestion . . . that the residual provision is unconstitutionally
vague."); Sykes, 131 S. Ct. at 2277 ("The provision . . . provides guidance that allows
2
On November 3, 2006, Evans was convicted of two felony counts of second-
degree domestic assault, one committed on July 29, 2006, and the other on September
17, 2006. On August 26, 1992, while a juvenile, Evans was convicted of aggravated
assault.
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a person to conform his or her conduct to the law." (quotation omitted)); United
States v. Brown, 734 F.3d at 827 (same); Ramsey, 498 F. App'x at 653-54 (same).
Evans's two Sixth Amendment challenges are likewise identical to the
challenges made in Ramsey. He challenges the district court's finding that his two
domestic assault convictions "were committed on occasions different from one
another," as required under § 924(e), asserting that the district court's determination
of the date of the crimes violated his Sixth Amendment rights in that it was a factual
determination that should have been resolved by a jury. In response to this argument
in Ramsey, this court acknowledged that "[w]e have previously held the question of
whether prior felonies were committed on separate occasions may be resolved by a
judge." 498 F. App'x at 654. Moreover, we have rejected similar Sixth Amendment
arguments challenging the information the district court considers when determining
the specific dates on which the offenses occurred. United States v. Richardson, 483
F. App'x 302, 305 (8th Cir. 2012) (per curiam) (rejecting an argument that the
sentencing court's use of the PSR to determine the dates of the predicate offenses
violated the defendant's Six Amendment rights); United States v. Wilson, 406 F.3d
1074, 1075 (8th Cir. 2005) (finding no Sixth Amendment violation where defendant
asserted that the determinations of whether his prior felonies were violent felonies
that occurred on separate occasions required findings of fact beyond the mere fact of
a prior conviction); see also United States v. Davidson, 527 F.3d 703, 707 (8th Cir.)
("We may consider both the offenses of conviction and the underlying facts to
determine whether the offenses were committed on difference occasions."), vacated
in part on other grounds by, 551 F.3d 807, 808 (8th Cir. 2008) (per curiam).
Accordingly, Evans's argument fails.
Finally, Evans asserts that because the prior convictions were not charged in
the indictment, proven beyond a reasonable doubt to a jury or admitted by Evans, the
enhancement violated his Sixth Amendment rights. Evans concedes that Apprendi
v. New Jersey, 530 U.S. 466, 489-90 (2000), recognized that "fact[s] of a prior
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conviction" need not be submitted to the jury and proven beyond a reasonable doubt
based on Almendarez-Torres v. United States, 523 U.S. 224 (1998). But Evans
argues, just as the appellant did in Ramsey, that Almendarez-Torres was wrongly
decided. Because this argument is contrary to precedents from the Supreme Court
and our court, which recognize that "the government is not required to charge the fact
of a prior conviction or prove it to a jury," we reject Evans's claim for the same
reasons we rejected this argument in Ramsey. 498 F. App'x at 654.
The judgment of the district court is affirmed.
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