United States v. Edward Garlock, Jr. , 606 F. App'x 316 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-2753
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Edward L. Garlock, Jr.,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: February 9, 2015
Filed: July 10, 2015
[Unpublished]
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Before LOKEN, SMITH, and COLLOTON, Circuit Judges.
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PER CURIAM.
Edward Garlock pleaded guilty to unlawful possession of a firearm as a
previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). The statutory
maximum punishment for that offense ordinarily is ten years’ imprisonment, 18
U.S.C. § 924(a)(2), but the Armed Career Criminal Act provides for an enhanced term
of fifteen years to life imprisonment for certain recidivists. 18 U.S.C. § 924(e). The
enhancement applies to a person who has three previous convictions for serious drug
offenses committed on occasions different from one another. Id. § 924(e)(1),
(e)(2)(A). Based on Garlock’s criminal history, which included four convictions for
serious drug offenses committed on separate occasions, the district court1 determined
that Garlock was subject to the enhanced punishment and sentenced him to 200
months’ imprisonment.
Garlock appeals solely on the ground that the indictment did not allege the
predicate convictions that qualified him for the sentencing enhancement or that those
offenses were committed on occasions different from one another. He contends that
the district court violated the Sixth Amendment by enhancing his sentence based on
facts that were not charged in the indictment and found by a jury or admitted by the
defendant.
In general, “any facts that increase the prescribed range of penalties to which
a criminal defendant is exposed are elements of the crime” that must be charged in
an indictment and proved beyond a reasonable doubt. Alleyne v. United States, 133
S. Ct. 2151, 2160-61 (2013) (internal quotation marks omitted). But according to
Almendarez-Torres v. United States, 523 U.S. 224, 243-44 (1998), recidivism is not
such an element, and the Court in Alleyne did not revisit that “narrow exception” to
the general rule. 133 S. Ct. at 2160 n.1. Accordingly, Garlock’s contention is
foreclosed by precedent. United States v. Evans, 738 F.3d 935, 936-37 (8th Cir.
2014) (per curiam); United States v. Abrahamson, 731 F.3d 751, 751-52 (8th Cir.
2013) (per curiam). In any event, Garlock admitted the pertinent facts regarding the
predicate convictions by not objecting to the recitation in the presentence report.
United States v. Paz, 411 F.3d 906, 909 (8th Cir. 2005).
1
The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
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The judgment of the district court is affirmed.
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