United States v. Edward Joseph Lowen

1The Honorable Susan Richard Nelson, United States District Judge for the
District of Minnesota, sitting by designation.
2The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3917
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Saadi Reed, *
* [UNPUBLISHED]
Appellant. *
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Submitted: March 14, 2011
Filed: July 7, 2011
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Before LOKEN and COLLOTON, Circuit Judges, and NELSON,1 District Judge.
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PER CURIAM.
Saadi Reed pleaded guilty to one count of unlawful possession of a firearm as
a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the
district court 2 found that Reed had three previous convictions for violent felonies, and
that the statutory penalties set forth in the Armed Career Criminal Act, id. § 924(e),

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applied to the offense of conviction. As a result, Reed was subject to a mandatory
minimum term of fifteen years’ imprisonment, and a maximum term of life
imprisonment. Id. Without this enhancement, there is no mandatory minimum term,
and the statutory maximum punishment is ten years’ imprisonment. Id. § 924(a)(2);
see Logan v. United States, 552 U.S. 23, 27 (2007). The district court sentenced Reed
to a term of 210 months’ imprisonment, to be followed by five years of supervised
release.
Reed contends that the increase in the statutory maximum penalty beyond 120
months’ imprisonment violated the Fifth and Sixth Amendments, because his prior
convictions were not alleged in the indictment or proven to a jury. In Reed’s view,
his prior convictions were facts necessary to increase the maximum sentence that
could be imposed. Consequently, he says, the Fifth Amendment required that the
prior convictions be alleged in the indictment, and the Sixth Amendment dictated that
they be found by a jury beyond a reasonable doubt. He cites the rule of Apprendi v.
New Jersey, 530 U.S. 466 (2000) – “[o]ther than the fact of a prior conviction, any
fact that increases the punishment for a crime beyond the prescribed statutory
maximum must be submitted to a jury and proved beyond a reasonable doubt,” id. at
490 – and argues that the “recidivist exception to the Apprendi rule is no longer
controlling.” Appellant’s Br. 9.
As Reed acknowledges, his contention is foreclosed by circuit precedent. In a
virtually identical case, United States v. Sohn, 567 F.3d 392 (8th Cir. 2009), this court
rejected a contention that the Fifth Amendment required that predicate convictions for
a § 924(e) enhancement be alleged in the indictment. Id. at 394-95. We reasoned that,
under the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S.
224 (1998), a “district court may apply a sentence enhancement statute not cited in the
indictment, based on prior convictions also not included in the indictment.” Sohn, 567
F.3d at 394-95. In United States v. Campbell, 270 F.3d 702 (8th Cir. 2001), this court
held that determinations about whether a defendant sustained a previous conviction

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that constitutes a “violent felony” under § 924(e) fall within the “prior conviction”
exception to the rule of Apprendi, and need not be charged in an indictment or proved
to a jury beyond a reasonable doubt. Id. at 707-08. The district court correctly
applied these precedents.
The judgment of the district court is affirmed.
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