United States v. Mack

Opinions of the United
2000 Decisions States Court of Appeals
for the Third Circuit

9-29-2000

United States v. Mack
Precedential or Non-Precedential:

Docket 99-1265

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Filed September 29, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-1265

UNITED STATES OF AMERICA,

v.

CHARLES MACK,

Appellant.

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Criminal No. 98-308-1)
District Judge: Honorable Marvin Katz

Argued: March 9, 2000

Before BECKER, Chief Judge, NYGAARD and
GARWOOD,1 Circuit Judges.

(Filed September 29, 2000)

_________________________________________________________________
1. Honorable Will L. Garwood, Circuit Judge for United States Court of
Appeals for the Fifth Circuit, sitting by designation.
 David L. McColgin, Esq., (ARGUED)
Assistant Federal Defender,
Supervising Appellate Attorney
Maureen Kearney Rowley, Esq.,
Chief Federal Defender
Federal Court Division,
Defender Association of
Philadelphia
Lafayette Building, Suite 800
437 Chestnut Street
Philadelphia, PA 19106
Counsel for Appellant

Michael R. Stiles, Esq.,
United States Attorney
Walter S. Batty, Jr., Esq.,
Assistant United States Attorney,
Chief of Appeals
Patrick C. Askin, Esq., (ARGUED)
Special Assistant United States
Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee

OPINION OF THE COURT

GARWOOD, Circuit Judge:

After a jury trial, defendant-appellant Charles Mack
(Mack) was convicted on one count of possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
S 922(g)(1). Following Mack's conviction, the district court
sentenced Mack pursuant to the enhanced penalties under
the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C.
S 924(e)(1). Mack now appeals, challenging the application
of the ACCA to his sentence. We affirm.

Facts and Proceedings Below

At approximately 8:35 a.m. on March 15, 1997,
Philadelphia Police Officers responded to a report of gunfire
outside an "after-hours" bar located at Frazier and Market

2
Streets in Philadelphia. Upon arriving at the scene, one of
the officers observed Mack bent down and crouched behind
a parked vehicle. As he approached Mack, the officer
noticed a handgun in Mack's right hand. The officer then
drew his sidearm and ordered Mack to put the handgun
down. In response, Mack threw the handgun under the
parked vehicle. One officer then handcuffed Mack and
placed him in custody, while another retrieved the tossed
weapon, a loaded .380 caliber semi-automatic handgun,
from underneath the parked vehicle.

Shortly thereafter, the officers encountered Gregory
Wessels (Wessels) outside the bar. Wessels indicated to the
officers that he had been shot in his right leg. When asked
to identify the individual who had shot him, Wessels stated
that it was Mack. Wessels was then transported to a local
hospital where doctors removed a .380 caliber bullet from
his right leg. Later that day, while in the hospital, Wessels
again identified Mack as the shooter.2

From the area outside the bar, the officers recovered
twelve spent .380 caliber shell casings. These shell casings
were found just a few feet away from where Mack had been
standing and were consistent with ejection from a .380
caliber handgun. The officers also recovered several .22
caliber shell casings from the area and found a .22 caliber
rifle from inside the bar. Examination and test-firing of
Mack's .380 caliber handgun revealed that it was
operational and contained gunshot residue in its barrel.
After comparing the spent shell casings recovered outside
the bar with the .380 caliber handgun in Mack's
possession, the officers determined that the casings had
been fired by Mack's handgun. The .380 caliber bullet
removed from Wessels's leg was also analyzed. While the
bullet bore insufficient markings to positively match it to
Mack's handgun, the bullet was of the same caliber and did
in fact have markings consistent with being fired from
Mack's handgun. Moreover, the officers determined that
Mack's handgun had been manufactured outside of
Pennsylvania and had traveled in interstate commerce.
_________________________________________________________________

2. At trial, however, Wessels denied that it was Mack who shot him.

3
On June 30, 1998, a federal grand jury in the Eastern
District of Pennsylvania indicted Mack under 18 U.S.C.
S 922(g)3 for one count of knowingly possessing in and
affecting interstate commerce, on or about March 15, 1997,
a firearm, after he had been previously convicted in the
Court of Common Pleas, Philadelphia County,
Pennsylvania, of an unspecified felony punishable for a
term of imprisonment exceeding one year. The government's
pretrial detention motion, filed on July 17, 1998, stated
that Mack faced a fifteen-year minimum sentence and a
maximum sentence of life imprisonment for violating 18
U.S.C. S 922(g). In addition, the motion mentioned six of
Mack's prior convictions: two convictions for aggravated
assault, one for robbery, one for possession with intent to
deliver a controlled substance, and two for violating the
Uniform Firearms Act of Pennsylvania. On August 12,
1998, in response to defense counsel's discovery letter, the
government provided certified copies of four of Mack's prior
felony convictions: (1) robbery and conspiracy on November
7, 1977; (2) aggravated assault, resisting arrest, and
obstruction of justice on July 21, 1982; (3) aggravated
assault and possession of an instrument of crime on
December 11, 1985; and (4) possession with intent to
deliver a controlled substance and conspiracy on April 9,
1991. Moreover, on several occasions prior to trial, the
government orally notified defense counsel of its intent to
seek an enhanced sentence under the ACCA.4
_________________________________________________________________

3. 18 U.S.C. S 922(g) provides in relevant part:

"It shall be unlawful for any person--

(1) who has been convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year;

. . .

to ship or transport in interstate or foreign commerce, or possess
in or affecting commerce, any firearm or ammunition; or to receive
any firearm or ammunition which has been shipped or transported
in interstate or foreign commerce."

4. Section 922g(1), which proscribes the offense of which Mack was
convicted, contains no penalty provision. Section 922 is entitled
"Unlawful acts". Section 924 is entitled "Penalties". Section 924(a)(2)

4
A two-day jury trial concluded on September 25, 1998,
with the jury finding Mack guilty of violating 18 U.S.C.
S 922(g). On November 30, 1998, the Probation Office
submitted its Presentence Investigation Report (PSR) for
Mack's sentencing. The PSR stated that Mack was subject
to sentencing under the ACCA and indicated that, prior to
1997, Mack had been convicted of seven violent felonies
and serious drug offenses in the Philadelphia Court of
Common Pleas: (1) robbery and conspiracy on November 7,
1977; (2) carrying a firearm without a license on January
17, 1980; (3) aggravated assault, resisting arrest, and
obstruction of justice on July 21, 1982; (4) a violation of
the Uniform Firearms Act on March 13, 1985; (5)
aggravated assault and possession of an instrument of
crime on December 11, 1985; (6) possession of a controlled
substance on March 21, 1986; and (7) possession with
_________________________________________________________________

provides that "[w]hoever knowingly violates subsection . . . (g) . . . of
section 922 shall be fined as provided in this title, imprisoned not more
than 10 years, or both". Section 924(e)(1), the codification of the ACCA,
provides in relevant part:

"In the case of a person who violates section 922(g) of this title
and has three previous convictions by any court referred to in
section 922(g)(1) of this title for a violent felony or a serious
drug
offense, or both, committed on occasions different from one
another,
such person shall be fined not more than $25,000 and imprisoned
not less than fifteen years, and, notwithstanding any other
provision
of law, the court shall not suspend the sentence of, or grant a
probationary sentence to, such person with respect to the
conviction
under section 922(g)."

Section 924(e), which specifies no maximum term of imprisonment,
has been construed to authorize a life term. See Custis v. United States,
114 S.Ct. 1732, 1734 (1994) ("The Armed Career Criminal Act of 1984,
18 U.S.C. S 924(e) (ACCA), raises the penalty for possession of a firearm
by a felon from a maximum of 10 years . . . to a mandatory minimum
sentence of 15 years and a maximum of life in prison. . . if the
defendant `has three previous convictions . . . for a violent felony or
serious drug offense.' "); United States v. Kole, 164 F.3d 164, 168 (3d
Cir.
1998) (quoting the foregoing passage from Custis ); United States v.
Guerrero, 5 F.3d 868, 874 n.12 (5th Cir. 1993); United States v. Carey,
898 F.2d 642, 644 (8th Cir. 1990); United States v. Blannon, 836 F.2d
843, 845 (4th Cir.), cert. denied, 108 S.Ct. 1741 (1988).

5
intent to deliver a controlled substance and conspiracy on
April 9, 1991. Because he was considered an armed career
criminal, Mack's criminal history category was VI. 5 See
U.S.S.G. S 4B1.4(c)(2). The PSR calculated Mack's total
offense level to be thirty-four, as Mack possessed the
handgun in connection with a crime of violence (the
shooting of Wessels). See U.S.S.G. S 4B1.4(b)(3)(A). The
imprisonment range for a defendant with a criminal history
of VI and a total offense level of thirty-four is 262-327
months. See U.S.S.G. Ch. 5, Part A.

In response to the PSR, Mack filed a pro se motion
challenging the application of the ACCA enhancement on
the basis that he did not receive formal pretrial notice of the
government's intent to seek an enhanced sentence under
the ACCA.6 However, Mack did not at any time contest the
validity of the convictions reported in the PSR. On March 9,
1998, the government filed a formal notice of its intention
to seek the enhanced penalties, listing four prior
convictions that the government was relying on to trigger
the application of the ACCA. These were the same four prior
convictions that were contained in the government's pretrial
detention motion, and they correspond to the certified
copies of conviction provided to defense counsel on August
12, 1998 in response to defense counsel's discovery letter.

On March 19, 1998, the district court conducted a
sentencing hearing, at which the district court considered
Mack's objection to the application of the ACCA. After
determining that the ACCA itself does not require pretrial
notice, the district court concluded that the only remaining
question was whether Mack received the requisite notice to
satisfy constitutional due process concerns. The district
court ruled that the actual, even if not formal, written
notice provided to Mack before trial regarding his prior
convictions and possible sentence, the government's
pretrial discussions with Mack's counsel regarding the
_________________________________________________________________

5. Without the application of the ACCA, Mack's criminal history score
was nine, which falls within criminal history category IV.

6. Concurrent with these objections, Mack alsofiled a pro se notice of
appeal, which was later dismissed by this Court for lack of subject
matter jurisdiction.

6
applicability of the ACCA and its intention to seek its
enhanced penalties, and the formal notice Mack received in
the PSR and the government's formal notice filed ten days
before sentencing satisfied the requirements of due process.
Therefore, the district court overruled Mack's notice
objection. Mack was convicted of violating 18 U.S.C.
S 922(g)(1), and a defendant convicted under section 922(g)
who has three previous convictions for violent felonies or
violent drug offenses is subject to a sentence enhancement
under the ACCA and is deemed "an armed career criminal"
under U.S.S.G. S 4B1.4(a). The district court found that
Mack qualified as an armed career criminal under the
ACCA. The district court also concluded that Mack used or
possessed the handgun in the commission of a violent
felony, the shooting of Wessels. Accordingly, the district
court sentenced Mack to 262 months of imprisonment,five
years of supervised release, and a special assessment of
$100. Mack filed a timely notice of appeal.

Discussion

On appeal, Mack asserts the following points of error: (1)
the district court erred in enhancing his sentence under the
ACCA in the absence of formal pretrial notice of the
government's intention to seek enhancement and of the
specific prior convictions supporting its application; (2) the
district court's finding that Mack used or possessed a
firearm in connection with a crime of violence was
erroneous because it was based on a preponderance of
evidence standard rather than the required and higher
"clear and convincing" evidence standard; and (3) the
evidence was insufficient to support the district court's
finding that Mack used or possessed a firearm in
connection with a crime of violence. We consider these
issues in that order.

I. Notice of Intent to Seek a Sentence Under the ACCA

Mack did not challenge the validity of the convictions
supporting the application of the ACCA before the district
court. On appeal, Mack does not assert that he was
provided insufficient time to contest these prior convictions
nor claims that the district court's finding that he qualified

7
as an armed career criminal was erroneous. Instead,
pointing to the importance of pretrial knowledge of the
applicability of the ACCA in deciding whether to plead
guilty or to go to trial, he contends that his due process
rights were violated by the application of the ACCA,
because he did not receive formal, pretrial notice of the
government's intent to seek an enhanced sentence under
the ACCA and of the particular prior convictions that would
underlie the application of the ACCA. Accordingly, Mack
concludes that the ACCA cannot be constitutionally applied
to him. We disagree.

As Mack concedes, the ACCA does not require formal,
pretrial notice. See United States v. Mauldin , 109 F.3d
1159, 1163 (6th Cir. 1997); United States v. Hardy, 52 F.3d
147, 150 (7th Cir. 1995); United States v. Craveiro, 907
F.2d 260, 262 (1st Cir. 1990). Thus, only notice necessary
to satisfy constitutional due process requirements need be
given. This Court reviews de novo Mack's assertion that his
due process rights were violated. See United States v.
Joseph, 996 F.2d 36, 39 (3d Cir. 1993).

In Oyler v. Boles, 82 S.Ct. 501 (1962), the Supreme Court
stated that "due process does not require advance notice
that the trial on the substantive offense will be followed by
an habitual criminal proceeding." Id. at 504. "Nevertheless,
a defendant must receive reasonable notice and an
opportunity to be heard relative to the recidivist charge
even if due process does not require that notice be given
prior to the trial on the substantive offense." Id. at 504. The
ACCA is a sentence enhancement statute and does not
create a separate offense.7 See United States v. Hawkins,
811 F.2d 210, 220 (3d Cir. 1987). See also United States v.
_________________________________________________________________

7. Mack does not contend otherwise. Neither Jones v. United States, 526
U.S. 227 (1999) nor Apprendi v. New Jersey, 120 S.Ct. 2348 (2000) is to
the contrary; neither involved prior conviction enhancement, and the
Court noted in Apprendi "other than the fact of a prior conviction, any
fact
that increases the penalty for a crime beyond the statutory maximum
must be submitted to a jury and proved beyond a reasonable doubt." Id.
at 2362-63 (emphasis added). And, Mack has never contended that
absent a jury finding beyond a reasonable doubt of his ACCA predicate
prior convictions that his statutory maximum sentence could not exceed
ten years or was other than life imprisonment.

8
Henry, 933 F.2d 553, 558 (7th Cir. 1991), cert. denied, 112
S.Ct. 1703, (1992); United States v. Afflek , 861 F.2d 97, 99
(5th Cir. 1988), cert. denied, 109 S.Ct. 1325 (1989). In
Hawkins, this Court held that the government'sfiling notice
of its intent to request an enhanced sentence under the
ACCA, which included a list of the accused's prior
convictions, satisfied due process. See id. However, we
declined to determine to what extent, if any, notice by the
government of its intention to seek enhanced penalties
under the ACCA is constitutionally required. See id. Every
circuit that has addressed the issue has concluded that
formal, pretrial notice is not constitutionally mandated. See
United States v. O'Neal, 180 F.3d 115, 125 (4th Cir.), cert.
denied, 120 S.Ct. 422 (1999); Mauldin, 109 F.3d at 1163;
United States v. Bates, 77 F.3d 1101, 1105 (8th Cir. 1996);
United States v. Gibson, 64 F.3d 617, 625-26 (11th Cir.
1995); Hardy, 52 F.3d at 150; Craveiro , 907 F.2d at 264-
65. We agree and hold that due process does not require
the government to provide formal, pretrial notice of its
intention to seek a sentence under the ACCA.

Although Mack did not receive formal notice by the
government that he could be sentenced as an armed career
criminal until ten days before the day of sentencing, he
received actual notice well before trial. More than two
months before trial, the government filed its pretrial
detention motion that listed six of Mack's previous
convictions: robbery in 1977, aggravated assault in 1982, a
Uniform Firearms Act violation in 1980, aggravated assault
in 1982, a Uniform Firearms Act violation in 1985,
aggravated assault in 1985, and possession with intent to
deliver a controlled substance in 1991. This pretrial motion
also stated that Mack was subject to a mandatory
minimum term of fifteen years' imprisonment, with the
possible maximum penalty life imprisonment. In addition,
more than one month before trial, the government provided
defense counsel with certified copies of four of the six
convictions listed in the pretrial detention motion. Mack
and the government agree that prior to trial, the
government orally informed Mack that he could be
sentenced as an armed career criminal.

We conclude that Mack received constitutionally
adequate notice. First, the government provided him with

9
actual notice prior to trial, including certified copies of the
relevant prior convictions. Second, three and a half months
before sentencing, Mack received the PSR, which stated
that Mack was subject to being sentenced under the
ACCA's enhancement provisions and specified the prior
convictions that qualified him for that enhancement (as well
as other convictions on which the ACCA's application might
have been based). Third, the government filed an additional
notice ten days before sentencing formally notifying Mack
that he could be sentenced as an armed career criminal.
Therefore, Mack received more than sufficient notice of the
possibility of an enhanced sentence under the ACCA. See
United States v. Rundle, 318 F.2d 64, 66 (3d Cir. 1963) ("[I]t
is well settled that while a defendant `must receive
reasonable notice and an opportunity to be heard relative to
the recidivist charge' that `due process does not require
advance notice that the trial on the substantive offense will
be followed by an habitual criminal accusation.' ") (quoting
Oyler, 82 S.Ct. at 504); see also Hardy, 52 F.3d at 150
(finding that the following met due process notice
requirements: actual, informal notice; receipt of the PSR
listing all prior convictions and stating the ACCA's
applicability; and an additional formal notice just before
sentencing).

In conclusion, Mack had sufficient opportunity to contest
the earlier convictions and their applicability to his
sentence. He chose not to do so. Moreover, Mack makes no
claim of factual surprise of either the government's decision
to seek an enhanced sentence under the ACCA or the
convictions supporting the application of the ACCA. Formal
pretrial notice by the government would certainly do no
harm, and, given the importance of pretrial knowledge of
the ACCA's applicability to the decision whether to plead
guilty or to go to trial, we recommend it as the preferred
practice. However, it is not constitutionally mandated for
good reason, because "the fact of prior conviction is within
the knowledge of the defendant." Oyler, 82 S.Ct. at 504 n.6.
The notice given Mack more than satisfied due process
requirements.

10
II. Appropriate Standard for Factfinding at Sentencing

In determining Mack's sentence, the application of the
enhancement under U.S.S.G. SS 4B1.4(b)(3)(A) and
4B1.4(c)(2) for Mack's use or possession of thefirearm in
connection with a crime of violence--his shooting Wessels--
resulted in an offense level increase from thirty-three to
thirty-four and a criminal history category increase from
category IV to category VI, with a corresponding guideline
imprisonment range increase from a range of 188 to 235
months to a range of 262 to 327 months.8 Relying on this
Court's holding in United States v. Kikumura, 918 F.2d
1084 (3d Cir. 1990), Mack asserts that the ACCA
enhancement was so substantial that it requires the district
court to find by clear and convincing evidence that he shot
Wessels, instead of only by a preponderance of the
evidence, the latter being the test apparently employed by
the district court.9 We disagree.
_________________________________________________________________

8. U.S.S.G. S 4B1.4 provides in relevant part as follows:

"Armed Career Criminal

(a) A defendant who is subject to an enhanced sentence under the
provisions of 18 U.S.C. S 924(e) is an armed career criminal.

(b) The offense level for an armed career criminal is the greatest
of:

* * * * * *

(3)(A) 34, if the defendant used or possessed the firearm or
ammunition in connection with a crime of violence . . . or

(B) 33, otherwise.

(c) The criminal history for an armed career criminal is the
greatest
of:

* * * * * *

(1) the criminal history category from Chapter Four, Part A
(Criminal History), . . . ; or

(2) Category VI, if the defendant used or possessed the firearm or
ammunition in connection with a crime of violence. .. ."
9. The district court stated "To apply this section [S 4B1.4], it is
enough
that the government prove by a preponderance of the evidence that Mr.
Mack possessed or used the gun in connection with a crime of violence,
it is not required to prove that he was convicted of a crime of violence."
This was said, however, in connection with rejecting Mack's argument
"that because he was convicted only of possessing a firearm and not of
any crime of violence these [guideline] subsections do not apply to him."

11
The government normally bears the burden of proving
facts relevant to sentencing by a preponderance of the
evidence. See United States v. Paulino, 996 F.2d 1541, 1545
(3d Cir. 1993). "This is because after a juryfinds a
defendant guilty, the presumption of innocence no longer
applies, and the protections that form a corollary to that
presumption become less important." United States v.
Bertoli, 40 F.3d 1384, 1409 (3d Cir. 1994). In Kikumura,
however, this Court held that, under certain circumstances,
a higher standard of proof may be required. See Kikumura,
918 F.2d at 1098. Kikumura was convicted of twelve counts
of passport and weapons offenses, which resulted in an
imprisonment range of 27-33 months under the Sentencing
Guidelines. See id. at 1093-94. The district court concluded
that Kikumura's actions were significantly more serious
than his convictions and the corresponding guideline range
indicated. See id. at 1097. The district court, therefore,
imposed an upward departure on several bases, including
Kikumura's intent to cause multiple deaths and serious
injuries, his planned detonation of unusually dangerous
explosives, his intent to disrupt governmental functions,
and the endangerment of public safety and national
security. See id. at 1097-98. The district court upwardly
departed from Kikumura's original sentencing range of 27-
33 months to a term of 360 months' imprisonment--a 330-
month upward departure from the median of the applicable
guideline range of 27-33 months. See id. at 1098. When
making its findings at sentencing, the district court
employed the preponderance of the evidence standard.
Although recognizing this standard as "overwhelmingly"
predominant, this Court held that under the circumstances
of a "twelve-fold, 330-month departure from the median of
the applicable guideline range" the clear and convincing
standard was required in light of 18 U.S.C. S 3553(b)'s10
_________________________________________________________________

10. 18 U.S.C. S 3553(b) provides in relevant part:

"The court shall impose a sentence of the kind, and within the
range, referred to in subsection (a)(4) unless the court finds that
there exists an aggravating or mitigating circumstance of a kind,
or
to a degree, not adequately taken into consideration by the
Sentencing Commission in formulating the guidelines that should
result in a sentence different from that described. . . ."

12
directive that the sentencing court "find" certain
considerations to justify a departure. Id. at 1101-02; see id.
at 1101 ("[When a departure] is sufficiently great that the
sentencing hearing can be fairly characterized as`a tail
which wags the dog of the substantive offense,' . . . the
factfinding underlying that departure must be established
at least by clear and convincing evidence.") (quoting
McMillan v. Pennsylvania, 106 S.Ct. 2411, 2417 (1986)).

Kikumura's heightened standard has been applied in
other circumstances, albeit only to similarly extreme
upward departures. See United States v. Pastor , 173 F.3d
206, 216 (3d Cir. 1999) (applying the clear and convincing
standard when reviewing a nine-level upward departure
that increased the guideline range from 108-135 months to
292-365 months); Bertoli, 40 F.3d at 1409-10 (concluding
that an upward departure, resulting in a fifty-fold, $6.875
million increase of a defendant's fine, warranted the clear
and convincing standard of proof); United States v. Seale,
20 F.3d 1279, 1288 (3d Cir. 1994) (finding the clear and
convincing standard governed a seven-fold, $1.5 million
upward departure from the maximum fine under the
applicable guidelines range). Other decisions have
considered sentencing increases that have not warranted
such a heightened evidentiary standard. See, e.g., Paulino,
996 F.2d at 1545 & n.4 (reasoning that the calculation of
the amount of narcotics attributable to the defendant, and
the resulting increase in his sentence, did not warrant the
utilization of the clear and convincing standard); United
States v. Mobley, 956 F.2d 450, 458-59 (3d Cir. 1992)
(departing upward from a 15-21 month range to a 27-
month term of imprisonment); see also United States v.
Ruggiero, 100 F.3d 284, 290-91 (2d Cir. 1996) (refusing to
require clear and convincing evidence where enhancements
raised the defendants's offense levels by eight levels each);
United States v. Rodriguez, 67 F.3d 1312, 1322-23 (7th Cir.
1995) (declining to require clear and convincing evidence
for attributing 1,000 kilograms of marijuana to the
defendant); United States v. Arango-Montoya, 61 F.3d 1331,
1339 (7th Cir. 1995) (rejecting the clear and convincing
standard where the defendant's status as a prior drug
offender increased his sentence from a range of 63-78
months' imprisonment to a term of 120 months); United

13
States v. Trujillo, 959 F.2d 1377, 1381-82 (7th Cir. 1992)
(concluding that the preponderance of the evidence
standard was appropriate where the defendant's sentence
was increased from 115 months to 168 months, reflecting
a six-level difference in offense level); United States v.
Schuster, 948 F.2d 313, 315-16 & n.3 (7th Cir. 1991) (the
difference between the 21-27 month guideline range and
the 60-month sentence imposed pursuant to a statutory
mandatory minimum was not so dramatic as to mandate a
higher standard of proof). The application of S 4B1.4 on
account of Mack's use or possession of the firearm in
connection with a crime of violence raised Mack's
applicable guideline imprisonment range from 188 to 235
months to 262 to 327 months. This resulted in an 83-
month, or approximately thirty-nine percent, increase from
the median sentence of the guideline range. Mack's actual
sentence of 262 months was 27 months, or just under
twelve percent, longer than the maximum guideline
sentence absent that enhancement; the enhancement
raised the bottom of the guideline range by some 74
months, or about thirty-nine percent. Even assuming
arguendo that Kikumura's teachings apply in contexts other
than upward departures,11 the increase in Mack's sentence
does not approach the 330-month, twelve-fold increase in
Kikumura or the 207-month, three-fold increase in Pastor.
Rather, it more closely resembles those cases rejecting the
heightened burden of proof. Accordingly, the clear and
convincing standard of proof is not compelled, and we
review the government's proof at sentencing under the
preponderance of the evidence standard.12
_________________________________________________________________

11. The Eighth Circuit has suggested that a heightened standard may be
applicable, in certain extreme circumstances, when determining the
amount of drugs attributable to a defendant convicted of violating a drug
statute. See United States v. Townley, 929 F.2d 365, 369 (8th Cir. 1991);
but see Rodriguez, 67 F.3d at 1323 (intimating that Kikumura's
heightened scrutiny of departures from the sentencing range provided
under the guidelines may not lend itself to the guidelines themselves).

12. We do not believe that Apprendi, see note 7, supra, requires a
different result. Apprendi is concerned with when a fact becomes an
element of the offense so as to require its determination by a jury and
on the basis of proof beyond a reasonable doubt. Mack has not taken the

14
III. Sufficiency of the Evidence to Support the ACCA's
Application

In his third claim of error, Mack contends that the
evidence does not support the district court's finding that
he possessed a firearm in connection with a crime of
violence. Specifically, Mack asserts that the evidence was
insufficient for the district court to conclude that he shot
Wessels. As noted in Part II, the district court'sfinding on
this matter must be supported by a preponderance of the
evidence. This Court reviews the district court'sfindings of
fact for clear error. See United States v. Yeaman, 194 F.3d
442, 456 (3d Cir. 1999). We conclude that the district court
did not clearly err in determining that Mack possessed the
handgun in connection with a crime of violence. Indeed the
evidence supporting that finding is more than ample.

Mack does not dispute that he possessed the .380 caliber
handgun, or that shooting someone with it is a crime of
violence.13 Rather, Mack argues that the evidence does not
_________________________________________________________________

position before this Court that his shooting of Wessels with the weapon
was an element of the offense which had to be found by the jury or that
it had to be established beyond a reasonable doubt. Quite the contrary,
his argument here proceeds on the basis that it is a sentencing factor for
determination by the court at sentencing under a"clear and convincing"
evidence standard. Moreover, he argues that his sentence should have
been within the guideline range of 188-235 months, which necessarily
assumes that the relevant statutory maximum sentence was not the ten
years provided for in S 924(a)(2) but rather life imprisonment as provided
in S 924(e). See U.S.S.G. S 5G1.1(c)(1) (guideline sentence may not exceed
statutory maximum). While we doubtless have the authority to notice
"plain error"--cf. Fed.R. Crim. Proc. 52(b)--in an appropriate
circumstance, no such error is shown here. What was before the Court
in Apprendi were facts (other than the fact of prior conviction) "that
increase[ ] the penalty for a crime beyond the prescribed statutory
maximum." Id., 120 S.Ct. at 2362-63. That is not the case here, where
the statutory maximum is life imprisonment (see notes 4 and 7, supra).
We can find no "plain error" here. See, e.g., United States v. Aguayo-
Delgado, 2000 WL 988128 (8th Cir., July 18, 2000); United States v.
Meshack, 2000 WL 1218437 at n.18 (5th Cir. Aug. 28, 2000).

13. U.S.S.G. S 4B1.2(a) provides as follows:

"S 4B1.2. Definitions of Terms Used in Section 4B1.1

15
support the conclusion that he shot Wessels for three
reasons: (1) Wessels testified at trial that Mack was not the
shooter; (2) the testimony of the firearms expert did not
positively identify the bullet removed from Wessels's leg as
having come from Mack's handgun;14 and (3) there was no
evidence on the number of guns and persons involved in
the shooting outside the bar. We disagree.

Mack was in possession of a .380 caliber handgun
outside the bar, and Wessels was found by the officers
outside the bar with a gunshot wound in his right leg from
a .380 caliber bullet. Twelve fired .380 caliber shells were
lying on the ground in the area where Mack was standing
and were the only .380 caliber shells recovered from the
crime scene. All twelve shells were positively matched with
Mack's .380 caliber handgun which was found to be
operational and to contain gunshot residue in its chamber.
Although the bullet removed from Wessels's leg bore
insufficient markings to make a positive match with Mack's
handgun, it was of the corresponding caliber and had
markings consistent with it being fired from Mack's
handgun. Moreover, twice on the day he was shot, Wessels
made statements to the police that Mack was the gunman,
although Wessels's subsequent testimony contradicted
those statements. Under these facts, the district court did
not err in concluding that Mack shot Wessels. The shooting
_________________________________________________________________

(a) The term "crime of violence" means any offense under federal or
state law, punishable by imprisonment for a term exceeding one
year, that--

(1) has as an element the use, attempted use, or threatened use
of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another."

Mack's asserted shooting of Wessels is clearly covered by S 4B1.2(a)(1).

14. Officer Ernest Bottomer, the firearms expert, testified that the
bullet
removed from Wessels's leg had probably struck bone or another foreign
object, thereby damaging the bullet's condition and preventing a positive
match.

16
of Wessels constitutes a crime of violence, and Mack used
or possessed a firearm in connection with that crime.
Accordingly, the district court properly applied U.S.S.G.
SS 4B1.4(b)(3)(A) and 4B1.4(c)(2) in setting Mack's offense
level at thirty-four and his criminal history category at VI.
Mack has not established that the district court committed
clear error.

Conclusion

We find no error in the district court's application of the
ACCA to Mack's sentence. Mack's conviction and sentence
are

AFFIRMED.

17
BECKER, Chief Judge, concurring.

I join in Judge Garwood's fine opinion. I write separately
because of the implications of his footnote 12, which deals
with the potential impact on this case of the Supreme
Court's recent decision in Apprendi v. New Jersey, 120 S.
Ct. 2348 (2000). Apprendi declared that"[o]ther than the
fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond
a reasonable doubt." Id. at 6362-63. Viewed through the
lens of the separate opinions of Justices Scalia, Thomas,
O'Connor, and Breyer, see infra at 19-20, Apprendi's
implications for the legitimacy of a variety of sentencing
schemes, including the United States Sentencing
Guidelines, have stirred enormous controversy, portending
that the number of Apprendi challenges by incarcerated
defendants will soon reach tidal proportions.1 While I
_________________________________________________________________

1. One writer has suggested that thirty-nine federal and twenty state
criminal statutes may be unconstitutional under Apprendi. See Brooke
A. Masters, High Court Ruling May Rewrite Sentencing, Wash. Post, July
23, 2000, at A1 (citing work of Professor Susan Klein); see generally
Lewis J. Liman, Initial Thoughts on `Apprendi v. New Jersey,' N.Y.L.J.,
July 5, 2000, at 3 ("[T]he Court's decision has the potential to reopen
the
question of the constitutionality of the [sentencing] guidelines
themselves
. . . ."); Tony Mauro & Jonathan Ringel, Court's Apprendi Hate Crimes
Decision May Have Broad Impact on Sentencing, The Legal Intelligencer,
June 28, 2000, at 4 (quoting John Steer, member of the United States
Sentencing Commission, as stating that Apprendi will require the
Commission to cull "through guidelines, almost guideline by guideline
and offense by offense" to determine which portions comply with the
decision). Apprendi most obviously implicates federal drug sentences
because in such cases it is common for the judge, rather than the jury,
to determine (and sentence based on) the quantity of drugs possessed.
Over 41% of all federal convictions in fiscal year 1999--more than
23,000--were for drug offenses. See United States Sentencing
Commission, 1999 Sourcebook of Federal Sentencing Statistics, at 11.
Federal courts have been sentencing defendants under the United States
Sentencing Guidelines since November 1987, and hence they will no
doubt soon be required to grapple with the question whether Apprendi
applies retroactively on collateral review. The Clerk of this Court has
informed me that this Court has received seventeen applications to file
a second or successive habeas petition raising Apprendi issues during
the past six weeks. I have also been told that Apprendi is cited in nine
of the last thirteen such petitions that have been received, and that two
of the four that do not directly cite Apprendi raise possible Apprendi-
like
issues.
18
ultimately conclude that we need not and should not reach
the Apprendi issue in this case, the merits of that point
seem to me to be close. I therefore take this opportunity: (1)
to explain why the question is difficult; and (2) to identify
one critical Apprendi concern that is created by the unique
intersection between the Armed Career Criminal Act of
1984 ("ACCA"), 18 U.S.C. S 924(e), and the Sentencing
Guidelines.

I.

Charles Apprendi fired several shots "into the home of an
African-American family that had recently moved into a
previously all-white neighborhood." 120 S. Ct. at 2351. The
State of New Jersey charged him with, and Apprendi pled
guilty to, inter alia, two counts of second-degree possession
of a firearm for an unlawful purpose. See id. at 2352. The
maximum sentence for this crime under New Jersey law
was ten years in prison. See id. (citing N.J. Stat. Ann.
S 2C:32-6(a)(2)). Nevertheless, the trial court sentenced
Apprendi to twelve years in prison, relying on a statute that
allowed for an "enhanced" sentence of up to twenty years if
the sentencing judge found that "[t]he defendant in
committing the crime acted with a purpose to intimidate an
individual or group of individuals because of race .. . ." Id.
at 2351-52 (quoting N.J. Stat. Ann. S 2C:44-3(e)). The
Supreme Court of the United States reversed Apprendi's
sentence, holding that "[t]he New Jersey procedure
challenged in this case is an unacceptable departure from
the jury tradition that is an indispensable part of our
criminal justice system." Id. at 2366.

While Apprendi itself concerned only the New Jersey hate
crime statute, there are numerous suggestions in the
majority, concurring, and dissenting opinions that the
case's scope may be quite broad indeed. Justice Thomas's
concurrence argued that any fact that alters the range of
punishments to which a defendant is exposed must be
found by a jury, see id. at 2379-80, acknowledging that his
proposed rule might invalidate the Sentencing Guidelines
themselves. See id. at 2380 n.11. Justice Scalia's
concurrence maintained that "all the facts which must exist
in order to subject the defendant to a legally prescribed

19
punishment must be found by the jury." Id. at 2367.
Justice O'Connor's dissent expressed concern that the
Court's holding "will have the effect of invalidating
significant sentencing reform accomplished over the past
three decades." Id. at 2394. And Justice Breyer, a key
figure in the development of the Sentencing Guidelines,
lamented that "the rationale that underlies the Court's rule
suggests a principle . . . that, unless restricted, threatens
the workability of every criminal justice system (if applied to
judges) or threatens efforts to make those systems more
uniform, hence more fair (if applied to [sentencing]
commissions)." Id. at 2402.

The majority responded to these allegations simply by
noting that "[t]he Guidelines are, of course, not before the
Court. We therefore express no view on the subject beyond
what this Court has already held. See, e.g., Edwards v.
United States . . . ." Id. at 2366 n.21. Edwards, the only
case cited by the majority, was quoted for the proposition
that "a maximum sentence set by statute trumps a higher
sentence set forth in the Guidelines." 523 U.S. 511, 515
(1998). The Court did not cite Mistretta v. United States,
488 U.S. 361 (1989), the case that originally upheld the
constitutionality of the Sentencing Guidelines.

II.

A jury convicted Charles Mack of one count of being a
felon in possession of a firearm, in violation of 18 U.S.C.
S 922(g)(1) [hereinafter "the felon-in-possession statute"].
Section 924 (captioned "Penalties") contains the penalty
provisions for the offenses contained in Section 922.
Section 924(a)(2) states that "[w]hoever knowingly violates
[the felon-in-possession statute] shall befined as provided
in this title, imprisoned not more than 10 years, or both."
The ACCA, codified at Section 924(e), provides that "[i]n the
case of a person who violates [the felon-in-possession
statute] and has three previous convictions . . . for a violent
felony . . . such person shall be fined not more than
$25,000 and imprisoned no less than fifteen years . . . ."
While the statutory text provides only that violators shall be
"imprisoned not less than fifteen years," the Supreme Court
has construed this language as authorizing a life sentence.

20
See Curtis v. United States, 511 U.S. 485, 487 (1994). It is
important to note, as Judge Garwood recognizes, that"[t]he
ACCA is a sentence enhancement statute and does not
create a separate offense." Slip. op. at 10; see also Curtis,
511 U.S. at 490 (holding that the ACCA "provides an
enhanced sentence" for persons found to meet its criteria)
(emphasis added).

The District Court sentenced Mack to 262 months in
prison. This sentence was the result of the combination of
two sentence enhancements found by the District Court
pursuant to the Sentencing Guidelines. The first
enhancement, which I will refer to as "the ACCA
enhancement," applied because Mack was "subject to an
enhanced sentence under the provisions" of the ACCA.
U.S.S.G. S 4B1.4(a) (defining such an individual as "an
armed career criminal"); id. S 4B1.4(b)(3)(B) (mandating that
the offense level for any "armed career criminal" shall be no
less than 33); id. S 4B1.4(c)(3) (enhancing the criminal
history rating for all "armed career criminal[s]" to at least
Category IV). A simple finding that Mack was an armed
career criminal would have, without more, raised his
sentencing range under the Guidelines to between 188 and
235 months. See id. S 5A.

The second enhancement, which I will henceforth refer to
as the "crime of violence enhancement," applied because
the District Court concluded that, in addition to being an
"armed career criminal," Mack had also "possessed [a]
firearm . . . . in connection with a crime of violence," i.e.,
the shooting of Gregory Wessels. Id. S 4B1.4(b)(3)(A);2
S 4B1.4.c.2.3 This enhancement further raised Mack's
potential sentence to between 262 and 327 months. See id.
S 5A.4 As noted above, the District Court ultimately
sentenced Mack to serve 262 months in prison.
_________________________________________________________________

2. Section 4B1.4(b)(3)(A) provides that "[t]he offense level for any armed
career criminal" shall be no less than "34, if the defendant used or
possessed the firearm . . . in connection with a crime of violence."
3. Section 4B1.4(c)(2) states that "[t]he criminal history category of an
armed career criminal" shall be no less than"Category VI, if the
defendant used or possessed the firearm . . . in connection with a crime
of violence."
4. The Sentencing Table contained in Section 5A gives a sentencing
range of between 262 and 327 months for an offender with an offense
level of 34 and a criminal history category of VI.

21
III.

The Apprendi inquiry has two stages. A court must first
determine the "prescribed statutory maximum" sentence for
the crime of which the defendant was convicted and assess
whether the defendant's ultimate sentence exceeded it. If it
did, the court must consider the second-order Apprendi
question: whether the enhanced sentence was based on
"the fact of a prior conviction." If it was, then the sentence
is constitutional.5 If it was not, then the sentence is
unconstitutional. See Apprendi, 120 S. Ct. at 2362-63.
_________________________________________________________________

5. It is not clear how long this will be the case. The "fact of a prior
conviction" exception to Apprendi's general rule is based on the Supreme
Court's 1998 decision in Almendarez-Torres v. United States, 523 U.S.
224, which held that no constitutional violation occurs when a judge,
rather than a jury, increases a criminal sentence beyond the otherwise
prescribed statutory maximum based on the fact of prior convictions.
While Apprendi incorporated the Almendarez-Torres holding into its own,
see 120 S. Ct. at 2362-63 ("Other than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.") (emphasis added), the Apprendi majority went out of
its way to cast the future viability of Almendarez-Torres into question.
See id. at 2362 ("Even though it is arguable that Almendarez-Torres was
incorrectly decided, and that a logical application of our reasoning today
should apply if the recidivist issue were contested, Apprendi does not
contest the decision's validity and we need not revisit it for purposes of
our decision today to treat the case as a narrow exception to the general
rule we recalled at the outset."). Moreover, as commentators have noted,
five sitting Justices are now on record as saying that Almendarez-Torres
was wrongly decided. See Apprendi, 120 S. Ct. at 2379 (Thomas, J.,
concurring); Almendarez-Torres, 523 U.S. at 248 (Scalia, J., joined by
Stevens, Souter, and Ginsburg, dissenting).

I do not suggest that we should predict that the Court will overturn
Almendarez-Torres. Cf. State Oil Co. v. Khan, 522 U.S. 3, 20 (1997)
("Despite what Chief Judge Posner aptly described as Albrecht's
`infirmities, [and] its increasingly wobbly, moth-eaten foundations,'
there
remains the question whether Albrecht deserves continuing respect
under the doctrine of stare decisis. The Court of Appeals was correct in
applying that principle despite disagreement with Albrecht, for it is this
Court's prerogative alone to overrule one of its precedents.") (emphasis
added) (citation omitted). But the apprehension remains.

22
A.

In his footnote dealing with the Apprendi issue in this
case, Judge Garwood resolves the inquiry at stage one,
stating that "[w]hat was before the Court in Apprendi were
facts (other than the fact of prior conviction)`that increase[ ]
the penalty for a crime beyond the prescribed statutory
maximum.' [Citing Apprendi]. That is not the case here,
where the statutory maximum is life imprisonment. (see
note 4 and 7, supra)." Slip op. at 14-15 n.12. I am not so
sure.

What was the prescribed statutory maximum in this
case? There are two possibilities. The first and most
obvious answer is 120 months. The jury convicted Mack of
violating the felon-in-possession statute; he was not
charged with, nor convicted of, any other crime. The
maximum possible sentence for violating the felon-in-
possession statute simpliciter is 120 months. See 18 U.S.C.
S 942(a)(2). Thus, if Mack's prescribed statutory maximum
was set at the time of the jury's verdict, then his ultimate
sentence of 262 months exceeded it, and the first stage of
the Apprendi inquiry should be resolved in Mack's favor.

The other possibility, which Judge Garwood endorses, is
that the prescribed statutory maximum in this case was life
imprisonment, i.e., the maximum sentence statutorily
authorized by the ACCA. See Curtis, 511 U.S. at 487. If this
is true, then Apprendi is not implicated because Mack's
ultimate sentence (262 months) was within the prescribed
statutory maximum.

1.

While not spelled out in his opinion in these terms,
Judge Garwood's position appears to be as follows: (1) a
jury convicted Mack of being a felon in possession of a
firearm in violation of the felon-in-possession statute; (2)
the ACCA applies "[i]n the case of a person who violates
[the felon-in-possession statute] and has three previous
convictions . . . for a violent felony;" (3) under Apprendi, the
District Court (rather than a jury) was entitled tofind that
Mack "ha[d] three previous convictions . . . for a violent
felony," and thus to sentence Mack under the ACCA; (4) the

23
ACCA statutorily authorizes a life sentence; (5) the
prescribed statutory maximum in this case was thus life
imprisonment; and, therefore, (6) Mack's ultimate sentence
of 262 months was within the prescribed statutory
maximum and Apprendi is not implicated.

While not without force, this approach to determining a
prescribed statutory maximum is in tension with the
methodology applied by the Supreme Court in Apprendi.
Demonstrating why this is so requires a comparison of the
sentencing mechanics at issue in this case with those at
issue in Apprendi:

(1) Apprendi was "convicted of possession of afirearm for
an unlawful purpose." Apprendi, 120 S. Ct. at 2351.
Mack was convicted of knowingly violating the felon-in-
possession statute;

(2) Absent any additional findings by the trial court, the
maximum sentence that Apprendi faced would have
been ten years in prison. See id. Absent any additional
findings by the District Court, the maximum sentence
that Mack faced would have been ten years in prison.
See 18 U.S.C. S 924(a)(2);

(3) New Jersey law provided that the trial court was
required to sentence Apprendi to "an extended term" of
up to twenty years if it found that he "acted with a
purpose to intimidate an individual . . . because of
race." N.J. Stat. Ann. S 2C:44-3(e); see id. S 2C-43-
7(a)(3) (providing that the extended term for a person
convicted by a jury of a "crime of the second degree"
shall be "between 10 and 20 years"). The ACCA
provides that the District Court was required to
sentence Mack to an "enhanced sentence" of up to life
imprisonment, see Curtis, 511 U.S. at 487, 490, if it
found that he "ha[d] three previous convictions . . . for
a violent felony." 18 U.S.C. S 924(e)(1);

(4) The New Jersey trial court found that Apprendi had
committed his crime "with a purpose to intimidate" and
sentenced him to a "12-year term of imprisonment,"
which was 2 years longer than Apprendi could have
been sentenced to serve but for the "purpose to
intimidate" finding. 120 S. Ct. at 2352. The District

24
 Court found that Mack "ha[d] three previous
convictions . . . for a violent felony" and sentenced him
to serve 262 months (or 21 years and 10 months) in
prison, which was 11 years and 10 months longer than
Mack could have been sentenced to serve but for the
"three previous convictions . . . for a violent felony"
finding;

(5) Apprendi held that "[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a
reasonable doubt." 120 S. Ct. at 2362-63. The
Supreme Court held that Apprendi's sentence violated
this constitutional rule. See id. at 2363. For the Court
to do so, it needed to conclude that the "purpose to
intimidate" finding "increase[d] the penalty for
[Apprendi's] crime beyond the prescribed statutory
maximum." But if the New Jersey trial court's"purpose
to intimidate" finding increased Apprendi's sentence
beyond the prescribed statutory maximum, then the
District Court's "three previous convictions . . . for a
violent felony" finding did the same to Mack--the
mechanics are identical.

2.

There are, to be sure, some differences between Apprendi
and this case, but these differences are not material to the
determination of the prescribed statutory maximum
sentence. The first difference exists in the wording of the
statutes. Apprendi was convicted of possession of afirearm
with an unlawful purpose, which is defined as a"crime of
the second degree." N.J. Stat. Ann. S 2C:39:4(a). Under New
Jersey law, a "crime of the second degree" carries a
potential sentence of "between five and 10 years." Id.
S 2C:43-6. Nevertheless, a different provision of the New
Jersey Code of Criminal Justice states that a trial court
shall sentence a defendant to "an extended term" if it finds
that the defendant "acted with a purpose to intimidate." Id.
at 2C:44-3. Thus, the base level sentence for a second
degree offense is provided in Section 2C:43-6 and Section

25
2C:44-3 overtly purports to authorize "an extended term"
above and beyond that base sentence.

Title 18 of the United States Code operates somewhat
differently. Mack's substantive offense was violating the
felon-in-possession statute. Section 924 provides two
different sentencing options for such a person. Section
924(a)(2) provides that "[w]hoever knowingly violates [the
felon-in-possession statute] shall be . . . imprisoned not
more than 10 years." The ACCA, Section 924(e)(2), provides
that "[i]n the case of a person who violates[the felon-in-
possession statute] and has three previous convictions . . .
for a violent felony," the minimum sentence shall be fifteen
years and the maximum shall be life imprisonment. Neither
Section 924(a)(2) nor the ACCA contain any reference to the
other.

In light of this juxtaposition, one could argue that while
New Jersey law required a trial court to impose a base
sentence and then to extend it after concluding that the
defendant had acted with a "purpose to intimidate," federal
law requires no such thing. Instead, the argument would
go, a district court faced with a defendant who has been
convicted of violating the felon-in-possession statute needs
only to determine whether Section 924(a)(2) or the ACCA
provides the appropriate sentence. And if the court
concludes that the defendant "has three previous
convictions . . . for a violent felony," the argument
continues, it should bypass Section 924(a)(2) altogether and
instead sentence under the ACCA. Under this
interpretation, the ACCA did not enhance Mack's sentence,
it simply determined his sentence, as though Section
924(a)(2) began with the words "except as otherwise
provided in Section 924(e)."

However, this argument, which I acknowledge is not
without force, appears foreclosed by Apprendi as well. In
responding to New Jersey's claim that the "purpose to
intimidate" finding was merely a "sentencing factor" (that
may be found by a judge) rather than an "element" (that
must be found by a jury), the Court emphasized that"the
relevant inquiry is one not of form, but of effect--does the
required finding expose the defendant to a greater
punishment than authorized by the jury's guilty verdict

26
alone?" 120 S. Ct. at 2365. Under this standard, it does not
matter whether the ACCA is drafted in such a way as to
"bypass" Section 924(a)(2). The question is whether the
District Court's finding that Mack "ha[d] three previous
convictions . . . for a violent felony" exposed him "to a
greater punishment than authorized by the jury's guilty
verdict alone." Based on the jury's guilty verdict alone, the
longest sentence that Mack could have faced was ten years,
but he was sentenced to serve over twenty years. As a
result, the first Apprendi question cuts in Mack's favor.6

The second difference between this case and Apprendi is
likewise irrelevant to the determination whether the"three
previous convictions . . . for a violent felony"finding
increased Mack's sentence beyond the "prescribed statutory
maximum." In Apprendi, the Supreme Court reaffirmed that
the Constitution allows a judge to increase a defendant's
sentence "beyond the prescribed statutory maximum"
based on "the fact of a prior conviction." 120 S. Ct. at
_________________________________________________________________

6. This view is supported by the Ninth Circuit's recent decision in United
States v. Nordby, No. 99-10191, 2000 WL 1277211 (9th Cir., Sept. 11,
2000). Nordby held "that the amount of drugs for which a defendant is
sentenced under 21 U.S.C. S 841(b)(1) is" a fact that "increases the
prescribed statutory maximum penalty to which a criminal defendant is
exposed." Id. at *1. Nordby was convicted by manufacturing marijuana
and possession of marijuana with an intent to distribute it under Section
841(a). The district court instructed the jury that"the government [was]
not required to prove the amount or quantity of marijuana manufactured
as long as the government proves beyond a reasonable doubt that the
defendant manufactured a measurable or detectable amount of
marijuana." Id. Nordby was convicted by the jury and sentenced to life
imprisonment by the court. See id. Section 841(a) defines the
substantive offense without specifying a penalty. Section 841(b)
enumerates numerous potential penalties for violating Section 841(a)
which depend on the quantity of particular drugs manufactured or
possessed. The Ninth Circuit rejected the argument that "Section 841
contains `no prescribed statutory maximum,' and that therefore Apprendi
does not apply to Nordby's case," noting that "Apprendi makes clear that
the `prescribed statutory maximum' refers simply to the punishment to
which the defendant is exposed solely under the facts found by the jury."
Id. at *4. Because, absent a quantity finding, the maximum sentence
that would have been authorized by Section 841(b) was five years in
prison, the Ninth Circuit concluded that Norby's life sentence exceeded
the prescribed statutory maximum. See id. at *4.

27
2362-63 (emphasis added). While this exception could not
save the trial court's finding in Apprendi's case, which was
based on the "fact" that he had acted with a"purpose to
intimidate," see id. at 2363, it might save the enhancement
in this case, which was based on the fact that Mack"ha[d]
three previous convictions . . . for a violent felony." The
possibility, however, does nothing to change the fact that
the "three previous convictions" finding enhanced Mack's
sentence beyond the "prescribed statutory maximum;" it
simply raises the possibility that in this case the
enhancement was constitutional. In other words, while this
difference between Apprendi and this case may affect the
outcome of the second-order Apprendi question, it is
irrelevant to the resolution of the first.

In sum, I conclude that the District Court's finding,
pursuant to the ACCA, that Mack "ha[d] three previous
convictions . . . for a violent felony" increased his sentence
beyond the "prescribed statutory maximum" as defined in
Apprendi.

B.

If the foregoing is true, Apprendi would require us to ask
whether Mack's sentence beyond the prescribed statutory
maximum of 120 months was based on "the fact of a prior
conviction." As noted above, Mack's enhanced sentence was
based on two findings made by the District Court: (1) that
he was an "armed career criminal," and (2) that he had
"possessed [a] firearm . . . in connection with a crime of
violence."

The first of these findings is--at least for now, see supra
note 5--unquestionably valid under Apprendi. Under the
Sentencing Guidelines, a person is an "armed career
criminal" if he is "subject to an enhanced sentence under
the provisions of [the ACCA]." U.S.S.G.S 4B1.4(a). The
ACCA applies to any person convicted of violating the felon-
in-possession statute who also "has three previous
convictions . . . for a violent felony or a serious drug
offense." 18 U.S.C. S 924(e)(1). The terms"violent felony"
and "serious drug offense" are both defined in the statutory
text, see id. S 924(e)(2)(A-B), and there has been no

28
suggestion that the felonies for which Mack had previously
been convicted do not fall within the statutory language.

Apprendi problems arise, however, when the District
Court's second finding is considered. For Mack to have
been eligible for any sentence over 235 months, the District
Court needed also to conclude that Mack had "possessed
the firearm . . . in connection with a crime of violence." For
while the ACCA statutorily authorizes a life sentence, see
Curtis, 511 U.S. at 487, the Sentencing Guidelines operate
to deprive a district court of the ability to impose it in a
case such as Mack's. Even with the crime of violence
enhancement, the maximum sentence allowed by the
Guidelines would have been 327 months. More precisely,
with the ACCA enhancement, but without the crime of
violence enhancement, Mack's offense level would have
been 33 and his criminal history rating would have been IV.
See supra Part II. With these ratings, the maximum
allowable sentence would have been 235 months. See
U.S.S.G. S 5A. Even with the crime of violence enhancement
(which raised Mack's offense level to 34 and his criminal
history rating to VI, see supra Part II), the longest term to
which the District Court could have sentenced him was 327
months. See U.S.S.G. S 5A.

In other words, with or without the two sentence
enhancements, Mack could not have been sentenced to life
in prison. This is because a defendant with a criminal
history rating of IV (as Mack would have been without the
crime of violence enhancement) is not eligible for a life
sentence unless his or her offense level is at least 39. A
defendant with a criminal history rating of VI (as Mack was
after the crime of violence enhancement was applied) is not
exposed to a potential life sentence unless his or her
offense level is at least 37. See U.S.S.G.S 5A. There has
been no suggestion that Mack's offense level was even
potentially as high as 37, much less 39.

In this case, the District Court found that Mack had
unlawfully possessed the firearm in connection with the
shooting of Wessels. While shooting another person would
unquestionably qualify as a "crime of violence" under the
Guidelines, see id. S 4B1.2(a)(1), Mack has never been
charged, must less convicted by a jury, with shooting

29
Wessels.7 As a result, this finding does not fall within the
"fact of a prior conviction" exception to Apprendi's general
rule. If this logic is correct, then the maximum allowable
sentence under Apprendi in this case was 235 months--27
months less than the 262 month sentence ultimately
imposed.

There is, so far as I can tell, but one possible response to
this argument. One could acknowledge that the "prescribed
statutory maximum" in this case was 120 months and
concede that Mack's sentence of 262 months exceeded it,
but nevertheless assert that the (unquestionably valid)
statutory ACCA enhancement increased Mack's potential
sentence to life imprisonment. Because the District Court's
ultimate sentence of 262 months fell within the range that
could have been authorized by the ACCA finding, the
argument goes, the sentence does not violate Apprendi.

The question whether a valid sentence enhancement may
operate to raise the potential as well as the actual sentence
for a crime beyond the prescribed statutory maximum has
not been squarely addressed by the Supreme Court. Neither
of the Court's recent cases involving the validity of sentence
enhancements involved two separate enhancements. See
Apprendi, 120 S. Ct. at 2351 (involving a single
enhancement imposed if the presiding judge concluded that
"[t]he defendant in committing the crime acted with a
purpose to intimidate an individual or group of individuals
because of race, color, gender, handicap, religion, sexual
orientation or ethnicity" (quoting N.J. Stat. Ann. S 2C:44-
3(e))); Almendarez-Torres v. United States, 523 U.S. 224,
227 (1998) (involving enhancement based on the fact that
the non-citizen defendant's earlier deportation had been
"pursuant to" three earlier "convictions for aggravated
felonies").

I am not certain of the correct answer to this question.
The Supreme Court has implied that the "fact of a prior
conviction" exception should be narrowly construed. Cf.
Apprendi, 120 S. Ct. at 2361 (noting that the exception,
first enunciated in Almendarez-Torres,"represents at best
_________________________________________________________________

7. The evidence that Mack shot Wessels was substantial but not
overwhelming. See slip op. at 3.

30
an exceptional departure from . . . historic practice"). Since
the Supreme Court has not extended the Almendarez-Torres
"exception" to cover increases in potential sentences,
perhaps we should not do so either.

On the other hand, a fairly strong argument can be made
that an ultimate sentence does not violate the Constitution
so long as it is within the range of sentences authorized by
a valid sentence enhancement. The ACCA enhancement
was valid under Apprendi, and the ACCA statutorily
authorizes a life sentence. See Curtis, 511 U.S. at 487. But
for the Sentencing Guidelines, it appears incontestable that
the District Court would have had discretion, both
statutorily and constitutionally, to sentence Mack to life
imprisonment. Since the Sentencing Guidelines are
themselves a constitutional mechanism for channeling the
discretion that a sentencing court would otherwise enjoy,
see Mistretta v. United States, 488 U.S. 361 (1989), it can
certainly be argued that the means by which the Guidelines
channeled the District Court's discretion in this case do not
implicate Apprendi. Put differently, the argument is that
while perhaps Apprendi will come to mean that the
enhancement for shooting Wessels violates the Constitution
because it increased Mack's maximum sentence under the
Guidelines, even if it did not do so under the statute, it has
not yet acquired that meaning.8

IV.

Having fleshed out the potential Apprendi problem in this
case, the fact is that neither Mack nor his counsel explicitly
raised the issue. While it is true that Apprendi had not
been decided at the time of the filing of the briefs in this
case, the argument was certainly available in light of Jones
v. United States, 536 U.S. 227 (1999). Dicta in Jones stated
that
_________________________________________________________________

8. I have acknowledged the plausibility of the argument that the ACCA
technically did not increase but rather determined Mack's sentence
because, in cases such as this one, a sentencing judge is not required
to "pass through" Section 924(a)(1) in order to get to Section 924(e) (the
ACCA). See supra III.A.2. But for the reasons explained above, collapsing
the two provisions into one does not alter the fact that they are
conceptually distinct steps in the Apprendi analysis.

31
 under the Due Process Clause of the Fifth Amendment
and the notice and jury trial guarantees of the Sixth
Amendment, any fact (other than prior conviction) that
increases the maximum penalty for a crime must be
charged in an indictment, submitted to a jury, and
proven beyond a reasonable doubt.

Id. at 243 n.6. Although we doubtless have the power to do
so, "[w]e do not generally consider issues not raised by the
parties." Bolden v. Southeastern Pa. Transp. Auth., 953 F.2d
807, 812 (3d Cir.1991) (en banc). In light of our reluctance
to make binding decisions about issues not fully briefed
and argued by the parties, and because I am not certain
what the proper resolution of any Apprendi challenge to
Mack's sentence would be, I am content not to decide the
issue. Accordingly, I am satisfied to join in the opinion and
judgment of the Court.

I write separately with mixed emotions. In the wake of a
retroactively unsettling Supreme Court pronouncement
such as Bailey v. United States, 516 U.S. 137 (1995),9 I
have no desire for a repeat performance, or to contribute to
the constitutional haze enveloping the appropriate
relationship between judge and jury in our system of
criminal justice. I do, however, believe that it has been
useful to explore one aspect of the Apprendi problem with
which the judiciary will doubtless soon be required to
grapple. See supra note 1 (referencing recent Apprendi-
based filings in this Court).

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit
_________________________________________________________________

9. According to a Westlaw KeyCite performed August 30, 2000, Bailey
has aready been judicially cited 1893 times. It has also led to numerous
re-sentencing proceedings. See, e.g., United States v. Goggind, 99 F.3d
116, 117 (3d Cir. 1996) (involving a procedural posture where Bailey had
been decided while the case was originally on appeal, which necessitated
a remand for a new sentencing proceeding).

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