United States v. Pophal, Keith A. , 166 F. App'x 864 ( 2006 )

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                              UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 10, 2006*
Decided February 13, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 05-1421
UNITED STATES OF AMERICA,                     Appeal from the United States District
Plaintiff-Appellee,                       Court for the Western District of Wisconsin
v.                                      No. 04 CR 140
KEITH A. POPHAL,                              Barbara B. Crabb,
Defendant-Appellant.                      Chief Judge.
ORDER
Police officers in Merrill, Wisconsin, found firearms and ammunition in Keith
Pophal’s truck during a traffic stop. After they determined that Pophal was a felon,
they arrested him. Pophal later pleaded guilty in federal court to possession of a
firearm by a felon. See

18 U.S.C. § 922

(g)(1). He acknowledged in his plea
agreement, and was admonished during the plea colloquy, that he faced at least 15
*
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).
No. 05-1421                                                                     Page 2
years’ imprisonment under the Armed Career Criminal Act,

18 U.S.C. § 924

(e), if he
had three prior felony convictions for either a serious drug offense or crime of
violence, see

id.

 § 924(e)(2)(A), (B). The probation officer concluded that Pophal
indeed had three qualifying convictions, and calculated an imprisonment range of
180 to 199 months using the career offender guideline. See U.S.S.G. § 4B1.1. The
district court accepted the probation officer’s findings with no objection, and
accordingly sentenced Pophal to 180 months, the statutory minimum. See

18 U.S.C. § 924

(e)(1).
On appeal Pophal contends that his sentence was improperly enhanced under
§ 924(e) because the qualifying prior convictions were not alleged in the indictment
and neither admitted by him nor proven to a jury. Pophal did not make this
argument to the district court; to the contrary, in his plea agreement he “consent[ed]
to judicial factfinding, by a preponderance of the evidence, of all sentencing
adjustments.” That language would appear to doom Pophal’s argument. See United
States v. Lewis,

405 F.3d 511

, 513 (7th Cir. 2005); United States v. Briggs,

291 F.3d 958

, 964 (7th Cir. 2002). Regardless, Pophal candidly acknowledges that the
Supreme Court has rejected his argument, see Almendarez-Torres v. United States,

523 U.S. 224

, 247 (1998); United States v. Williams,

410 F.3d 397

, 401-02 (7th Cir.
2005), United States v. Harris,

394 F.3d 543

, 560 (7th Cir. 2005); United States v.
Collins,

272 F.3d 984

, 987 (7th Cir. 2001), and that he makes the argument here
only to preserve it for possible review by the Supreme Court. Until that time,
however, we are bound by Almendarez-Torres. See, e.g., United States v. Pittman,

418 F.3d 704