United States v. Dwaun Brown

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-1540
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Dwaun Brown, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 22, 2007
Filed: March 1, 2007
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Before RILEY, MAGILL, and MELLOY, Circuit Judges.
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PER CURIAM.
Dwaun Brown (Brown) pled guilty to conspiring to distribute and possess with
intent to distribute heroin, in violation of 21 U.S.C. § 846. Brown objected to his
classification as a career offender, arguing in reliance on Shepard v. United States,
544 U.S. 13, 27-28 (2005) (Thomas, J. concurring), his prior convictions should not
be used to enhance his sentence, despite Almendarez-Torres v. United States, 523 U.S.
224, 226-27, 247 (1998) (sentence-enhancing prior conviction need not be charged in
indictment; due process does not require treating recidivism as element of offense).
The district court1 overruled the objection, and sentenced Brown to 188 months’
imprisonment. Brown appeals, arguing his sentence violates the Fifth and Eighth
Amendments.
These arguments are unavailing. See United States v. Johnson, 408 F.3d 535,
540 (8th Cir. 2005) (“The Supreme Court has never overruled its decision in
Almendarez-Torres, and Shepard did not alter the rule that a court may consider prior
criminal history as a sentencing factor.”); United States v. Collins, 340 F.3d 672, 679
(8th Cir. 2003) (“The Eighth Amendment forbids only extreme sentences that are
grossly disproportionate to the crime.” (internal quotations omitted)). Brown’s
sentence is not unreasonable. Consequently, we affirm.
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1
The Honorable Stephen N. Limbaugh, United States District Judge for the
Eastern District of Missouri.
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