United States v. Steven J. 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