United States v. Derrick K. Patterson

1 The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-3314
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Norman Hardesty, *
* [UNPUBLISHED]
Appellant. *
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Submitted: March 13, 2006
Filed: March 28, 2006
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Before COLLOTON, HEANEY, and GRUENDER, Circuit Judges.
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PER CURIAM.
Norman Hardesty pleaded guilty to two counts of being a felon in possession
of firearms on two separate occasions, in violation of 18 U.S.C. § 922(g)(1). The
district court 1 sentenced him to 235 months of imprisonment to be followed by five
years of supervised release. On appeal, Hardesty argues his Sixth Amendment rights
to trial by jury and proof beyond a reasonable doubt were violated because his prior
convictions which were used to enhance his sentence were neither admitted by him,
nor proved to a jury beyond a reasonable doubt.

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Although Hardesty concedes that his argument is contrary to Almendarez-
Torres v. United States, 523 U.S. 224 (1998), he contends that Blakely v.
Washington, 542 U.S. 296 (2004), and Apprendi v. New Jersey, 530 U.S 466 (2000)
severely undermine the holding of Almendarez-Torres that a district court is entitled
to determine the nature and existence of a defendant’s prior convictions without
submitting these issues to a jury. This court has repeatedly held since Blakely and
United States v. Booker, 543 U.S. 220 (2005), that the determination of the nature of
a defendant’s prior offense is a legal question to be determined by the district court.
See United States v. Kendrick, 423 F.3d 803, 810 (8th Cir. 2005); United States v.
Camp, 410 F.3d 1042, 1047 (8th Cir.2005); United States v. Marcussen, 403 F.3d
982, 984 (8th Cir.), cert. denied, 126 S. Ct. 457 (2005). Accordingly, we affirm.
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