United States of America v. Titus L. Pitts

* After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 13, 2005*
Decided December 13, 2005
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-2111
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TITUS L. PITTS,
Defendant-Appellant.
Appeal from the United States District
Court for the Eastern District of
Wisconsin
No. 04-CR-219-001
J.P. Stadtmueller,
Judge.
O R D E R
When Titus Pitts showed up to sell drugs to a confidential informant, he was
arrested with a little more than 125 grams of cocaine. Pitts pleaded guilty to
possession with intent to distribute the cocaine, see 21 U.S.C. § 841(a)(1). At
sentencing the judge explained that he was applying the guidelines as advisory,
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

-- 1 of 2 --

No. 05-2111 Page 2
and—in light of a 1997 federal conviction for distributing cocaine and a 1991 state
conviction for armed robbery—sentenced Pitts as a “career offender,” see U.S.S.G.
§ 4B1.1, to 180 months’ imprisonment.
Now, Pitts asserts that his 15-year term of imprisonment violates the Sixth
Amendment as interpreted in Apprendi v. New Jersey, 530 U.S. 466 (2000), because
the district court applied the higher imprisonment range applicable to career
offenders even though a jury did not find the fact of the underlying convictions
beyond a reasonable doubt. But we have rejected this argument several times
before. See, e.g., United States v. Washington, 417 F.3d 780, 788 (7th Cir. 2005);
United States v. Pittman, 418 F.3d 704, 709 (7th Cir. 2005). As we explained in
those cases, under Almendarez-Torres v. United States, 523 U.S. 224 (1998), the fact
of a prior conviction is exempt from the rule that facts serving to increase a
statutory maximum must be admitted or proved to a jury beyond a reasonable
doubt. Washington, 417 F.3d at 788; Pittman, 418 F.3d at 709.
Indeed, Pitts’ argument is doubly frivolous. He was sentenced under the
advisory guidelines, and § 841(b) set the maximum sentence for his crime. See
United States v. Booker, 125 S. Ct. 738, 750, 764 (2005); United States v. Bryant,
420 F.3d 652, 655–56 (7th Cir. 2005). Even without the prior convictions, the
maximum prison term was 20 years (30 with the 1997 conviction). See 21 U.S.C.
§ 841(b)(1)(C). Since Pitts got only 15 years, his prison term could not violate the
Sixth Amendment even if Almendarez-Torres did not create an exception to
Apprendi for prior convictions. See United States v. Casas, 425 F.3d 23, 66 n.57 (1st
Cir. 2005); Bryant, 420 F.3d at 655–56.
AFFIRMED.

-- 2 of 2 --