United States v. Key

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 30 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-6343
BILLY WADE KEY, also known as (D.C. No. 00-CR-75-C)
B.W. Key, also known as Billy Wade (W.D.Okla.)
Key, Jr., also known as Billy W. Key,
also known as Billy Key,
Defendant-Appellant.
ORDER AND JUDGMENT*
Before HENRY, BRISCOE and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
Billy Wade Key appeals his sentence imposed under the Armed Career Criminal
Act (ACCA), 18 U.S.C. § 924(e)(1), following his plea of guilty to knowingly
possessing a firearm in interstate commerce, in violation of 18 U.S.C. § 922(g)(1). We
affirm.
On June 6, 2000, Key was indicted on one count of “knowingly possess[ing] a
firearm, that is a Charter Arms .38 caliber revolver . . . which was in and affecting
interstate commerce . . . in violation of Title 18 United States Code, Section 922(g)(1),
the penalty for which is found in Title 18, United States Code, Section 924(a)(2).” R.
Vol. I, Doc. 1 at 1-2. Key entered a plea of guilty on July 7, 2000. The government
filed a notice that it would seek imposition of a sentence under the enhanced penalty
provisions of the ACCA. Key filed his objections, arguing imposition of a sentence
under § 924(e)(1) would violate Apprendi v. New Jersey, 530 U.S. 466 (2000),
because he “was not charged with nor did he plead facts showing he had been
previously convicted of three or more violent or drug felonies.” R. Vol. I, Doc. 21 at
2. On September 28, 2000, the district court sentenced Key to a term of imprisonment
of 180 months.
On appeal, Key contends, under Apprendi, the district court erred in sentencing
him under the ACCA to fifteen years in prison when the indictment charged him under
a statute that carried a maximum penalty of ten years. Key acknowledges this court's
recent decision in United States v. Dorris, 236 F.3d 582, 586-88 (10th Cir. 2000),
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expressly rejected the argument he makes here. In Dorris, we held that Apprendi failed
to overrule Almendarez-Torres v. United States, 523 U.S. 224 (1998), which held that
prior felony convictions are mere sentence enhancements and not elements of an
offense. Key states he brought this appeal to preserve the issue because he anticipates
Dorris will be overruled.
AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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