United States v. Derrick K. Patterson

1The Honorable Robert T. Dawson, United States District Judge for the Western
District of Arkansas.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2195
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Western District of Arkansas.
*
Douglas Leon Harkreader, * [UNPUBLISHED]
*
Appellant. *
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Submitted: February 13, 2006
Filed: March 6, 2006
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Before RILEY, MELLOY, and BENTON, Circuit Judges.
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PER CURIAM.
Douglas Leon Harkreader was convicted of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g). By his criminal history, the district court 1
found that under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), the
appropriate guidelines range was 188 to 235 months. The court then varied
downward, sentencing Harkreader to the 180-month statutory minimum. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.

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First, Harkreader argues his Sixth Amendment rights were violated by the
judge's determination of his prior convictions. To the contrary, "a prior felony
conviction is a sentencing factor for the court, not a fact issue for the jury." United
States v. Carrillo-Beltran, 424 F.3d 845, 848 (8 th Cir. 2005) (citing Almendarez-
Torres v. United States, 523 U.S. 224, 240–44 (1998)), cert. denied, No. 05-8358,
2006 WL 386793 (Feb. 21, 2006). This court follows Almendarez-Torres, which is
still controlling. See United States v. Levering, 431 F.3d 289, 295 (8 th Cir. 2005);
United States v. Morell, 429 F.3d 1161, 1164 (8 th Cir. 2005); United States v. Torres-
Alvarado, 416 F.3d 808, 810 (8 th Cir. 2005). Thus, the district court did not abuse its
discretion by making findings about the prior felony convictions.
Next, Harkreader claims that mandatory minimum sentences are
unconstitutional after United States v. Booker, 543 U.S. 220 (2005), and Shepard v.
United States, 544 U.S. 13 (2005). Because he did not raise this constitutional
challenge before the district court, this court reviews for plain error. See United States
v. Jackson, 419 F.3d 839, 844 (8 th Cir. 2005) (citing United States v. Pirani, 406 F.3d
543, 549–50 (8 th Cir. 2005)), cert. denied, 126 S. Ct. 841 (2005). Under plain error
review, this court will reverse only if there is 1) error 2) that is plain and 3) affects the
defendant's substantial rights. See United States v. Olano, 507 U.S. 725, 732 (1993).
In addition, the error must seriously affect "the fairness, integrity or public reputation
of judicial proceedings." Id.
This court has determined that, post-Booker, mandatory minimum sentences are
constitutional. See United States v. Rojas-Coria, 401 F.3d 871, 874 n.4 (8 th Cir.
2005), see also United States v. Nolan, 397 F.3d 665, 667 & n.2 (8 th Cir. 2005), cert.
denied, 126 S. Ct. 195 (2005). Therefore, the district court did not err in sentencing
Harkreader to the minimum sentence under the ACCA.
The judgment of the district court is affirmed.
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