United States v. Robert E. Rush

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-1913
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Western
v. * District of Missouri.
*
Robert Earl Rush, * [UNPUBLISHED]
*
Appellant. *
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Submitted: September 13, 2001
Filed: September 20, 2001
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Before WOLLMAN, Chief Judge, RICHARD S. ARNOLD and FAGG, Circuit
Judges.
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PER CURIAM.
Robert Earl Rush, for the second time, appeals his conviction and sentence for
methamphetamine related crimes. On remand, the district court* properly resentenced
Rush to 240 months’ imprisonment because Rush’s earlier amphetamine possession
conviction raised the mandatory minimum penalty to twenty years’ imprisonment under
*
The Honorable Scott O. Wright, Senior United States District Judge for the
Western District of Missouri.
21 U.S.C. § 841(b)(1)(A). In this appeal, Rush again contends his sentence violates
Apprendi v. New Jersey, 530 U.S. 466 (2000), because his earlier conviction, a fact
which raised the mandatory minimum penalty, was not found by a jury. For the second
time, we reject Rush’s contention. See United States v. Rush, 240 F.3d 729, 731 (8th
Cir. 2001). Apprendi clearly holds earlier convictions are excepted from the general
rule that any fact increasing a penalty beyond the statutory maximum must be found by
a jury beyond a reasonable doubt. Apprendi, 530 U.S. at 490; United States v.
Aguayo-Delgado, 220 F.3d 926, 932 (8th Cir.), cert. denied, 121 S. Ct. 600 (2000).
Although Rush invites us to re-evaluate the earlier-conviction exception in Apprendi,
we are obliged to apply controlling Supreme Court precedent, see Rodriguez de Quijas
v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989), and to follow decisions
of earlier panels of this court, see United States v. Pollard, 249 F.3d 738, 739 (8th
Cir.), cert. denied, 121 S. Ct. 1964 (2001). Besides, Apprendi does not apply where
nonjury factual determinations raise the mandatory minimum penalty within the
statutory range authorized by the jury’s verdict. See United States v. McIntosh, 236
F.3d 968, 976 (8th Cir. 2001); Aguayo-Delgado, 220 F.3d at 933-34.
We thus affirm Rush’s conviction and sentence. See 8th Cir. R. 47B.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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