United States v. Lynch, James D. , 203 F. App'x 718 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 18, 2006*
Decided October 23, 2006
Before
Hon. THOMAS E. FAIRCHILD, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 05-4214
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of
Indiana, New Albany Division
v.
No. 4:05CR00009-002
JAMES D. LYNCH,
Defendant-Appellant. John Daniel Tinder,
Judge.
ORDER
James Lynch was sentenced to three concurrent terms of life imprisonment
after a jury found him guilty on drug conspiracy and distribution charges. On
appeal he argues that the district court violated the Sixth Amendment when it
increased the maximum and minimum statutory penalties based upon prior
convictions not charged in the indictment or proved to a jury beyond a reasonable
doubt. But Lynch also acknowledges that this contention is contrary to precedent
and raises it here only to preserve the prospect of further review in the Supreme
Court. We affirm.
*
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. 05-4214 Page 2
A grand jury charged Lynch with one count of conspiracy to distribute 50 or
more grams of methamphetamine, see 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A), one
count of possession with intent to distribute 50 or more grams of
methamphetamine, see id. § 841(a)(1), (b)(1)(A), and one count of possession with
intent to distribute five or more grams of methamphetamine, see id. § 841(a)(1),
(b)(1)(B). Prior to trial the government filed an information notifying Lynch that it
planned to seek enhanced statutory penalties based upon his two prior felony drug
convictions. See 21 U.S.C. § 851(a)(1). A jury found Lynch guilty on all counts.
Based upon the drug quantity and Lynch’s two prior convictions, the
probation officer advised the court that Lynch was subject to mandatory life
imprisonment for the conspiracy and distribution count that involved at least 50
grams of methamphetamine, see 21 U.S.C. § 841(b)(1)(A), and a maximum of life
imprisonment for the distribution count that involved at least five grams, see id.§ 841(b)(1)(B). The probation officer then calculated Lynch’s sentencing guidelines
range using the career offender guideline, see U.S.S.G. § 4B1.1, which yielded an
advisory range of 360 months to life on each count. The district court accepted the
probation officer’s recommendations and sentenced Lynch to life imprisonment on
each count.
On appeal Lynch challenges only the judicial fact-finding that increased the
statutory punishment attached to his offenses of conviction. He disputes neither
that Almendarez-Torres v. United States, 523 U.S. 224 (1998), is binding precedent
nor that we continue to enforce Almendarez-Torres despite questions concerning its
continuing viability. See United States v. Pittman, 418 F.3d 704, 709 (7th Cir.
2005). Instead he argues that, in light of Apprendi v. New Jersey, 530 U.S. 466(2000), and dicta in Monge v. California, 524 U.S. 721, 741 (1998) (Scalia, J.,
dissenting) (characterizing the Almendarez-Torres holding as “a grave
constitutional error affecting the most fundamental of rights”), and Shepard v.
United States, 544 U.S. 13, 27-28 (2005) (Thomas, J., concurring) (stating that “a
majority of the Court now recognizes that Almendarez-Torres was wrongly
decided”), Almendarez-Torres is no longer good law. Thus, he says, we should
“reconsider” our decision in Pittman.
We decline Lynch’s invitation. In Almendarez-Torres the Supreme Court
held that prior felony convictions are sentencing factors that need not be charged in
the indictment or proved to a jury beyond a reasonable doubt. 523 U.S. at 244. And
in Pittman we instructed that the Court’s subsequent opinions left the holding of
Almendarez-Torres undisturbed. 418 F.3d at 709; see United States v. Booker, 543
U.S. 220, 244 (2005) (any fact that increases the penalty for a crime beyond the
maximum prescribed by statute must be submitted to a jury and proved beyond a
reasonable doubt, except for the fact of a prior conviction); Apprendi, 530 U.S. at
490; Jones v. United States, 526 U.S. 227, 243 n.6 (1999). Nothing has occurred
No. 05-4214 Page 3
since our decision in Pittman to change our minds. See United States v. Santiago-
Ochoa, 447 F.3d 1015, 1020-21 (7th Cir. 2006); United States v. Browning, 436 F.3d
780, 781 (7th Cir. 2006).
AFFIRMED.