Under the Armed Career Criminal Act (“ACCA”), any person convicted of being a felon in possession of a firearm who has “three previous convictions ... for a violent felony ... committed on occasions different from one another” is subject to a mandatory minimum prison term of fifteen years. 18 U.S.C. § 924(e)(1). On June 6, 2011, the district judge in this case sentenced Steven J. Nigg — who has three pri- or felony armed robbery convictions, all of which stem from a crime spree that occurred more than thirty-five years ago — to the mandatory minimum sentence under the ACCA, to be followed by three years of supervised release. See 18 U.S.C. §§ 922(g) and 924(e)(1).
Months prior to being sentenced, Nigg pled guilty to the charge of possession of a firearm by a felon, but reserved the right to challenge his status as an Armed Career Criminal (“ACC”). Initially, the dis *932 trict judge expressed misgivings about the fairness of a fifteen-year sentence, but nonetheless found that Nigg qualified as an ACC. On appeal, Nigg raises a wide variety of arguments challenging his sentence. For the following reasons, we affirm the sentence imposed by the district judge.
I. Background
In November 1976, at the age of twenty-one, Nigg and his cohort, Dennis Oberheim, embarked on an extensive Arizona crime spree which included at least three armed robberies. On November 3, 1976, Nigg and Oberheim robbed a motel clerk at gunpoint and stole $372.75. The next day, the men robbed two convenience store clerks at gunpoint, making off with $100.00. On November 8, 1976, the duo robbed a gas station, taking a pair of gloves, a pack of Kool cigarettes, and $197.72. On March 9, 1977, roughly four months later, Nigg was convicted of three counts of armed robbery with a gun in Maricopa County, Arizona. He received a concurrent sentence of fifteen to thirty years in prison on each armed robbery count, and additional charges were dismissed as part of a plea agreement.
Following his release from prison in 1990, Nigg walked a more straight and narrow path. He moved to Wisconsin, where he cared for his father’s ailing wife until she died. Following her death, Nigg continued to live with his father, until he remarried. Nigg also contributed to his community. Prior to sentencing, the district judge received “numerous letters of support testifying to Nigg’s kind and generous character, his willingness to help neighbors, and his involvement in community activities, notably marital arts classes for youth and annual appearances as a volunteer Santa Claus and Easter Bunny.” But, even after his release, Nigg’s behavior was less than saintly. Specifically, between 1990 and his father’s death in 2009, Nigg received two misdemeanor convictions which resulted in fines — criminal damage to property in 1998 and obstructing an officer in 2003. Nigg also failed to pay a series of tax warrants filed by the State of Wisconsin.
In 2009, however, Nigg’s life took a sharp turn for the worse. His father passed away, and he became executor of the estate. In a somewhat cruel twist of fate, the estate included over 120 firearms. Nigg’s stepmother soon became suspicious that Nigg was selling firearms in violation of the probate court’s restraining order. Wary that Nigg was depleting assets, she hired a private investigator to attempt to purchase firearms. On September 4, 2009, the investigator entered Nigg’s consignment shop (which he ran out of his home) and purchased two rifles from Nigg for $1,600.00. Thereafter, the investigator and Nigg’s stepmother disclosed the results of their sting operation to agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”).
The ATF’s subsequent investigation resulted in Nigg’s arrest and indictment. Specifically, the ATF agent learned that, during Nigg’s transaction with the private investigator, Nigg showed the investigator a printed list of firearms from his father’s estate. Notations on the list indicated that some of the guns had been sold and some had been shipped to an auction house in Maine. Moreover, the ATF agent reviewed a deposition transcript taken in a civil action that Nigg’s stepmother commenced against the estate. During his deposition, Nigg testified that, in his capacity as executor, he had decided to sell some his father’s guns and divide the proceeds among the named beneficiaries.
On December 14, 2010, a federal grand jury in the Eastern District of Wisconsin *933 returned a one-count indictment charging Nigg with possession of firearms by a convicted felon as an ACC, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). As noted above, the ACCA imposes a fifteen-year mandatory minimum sentence on an offender who has three previous convictions “for a violent felony ... committed on occasions different from one another.” 18 U.S.C. § 924(e)(1).
On January 19, 2011, Nigg pled guilty to the felon in possession charge, but reserved the right to challenge his status as an ACC. On May 5, 2011, in a written opinion, the district judge rejected these challenges. In doing so, however, the district judge expressed “moral concerns” about the overall fairness of a fifteen-year sentence, highlighting the following considerations: Nigg is 55 years old; he had a difficult childhood; and “the predicate offenses for Nigg’s ACC designation are almost thirty-five years old ... [and] he appears to have led a substantially crime-free and, in some respects, exemplary life since he was released from prison in 1990[.]” Nonetheless, the district judge recognized that his hands were tied by mandatory minimum sentence terms, writing that “[b]ecause Nigg qualifies as an ACC, the Court is required by law to impose a sentence of at least fifteen years no matter what its own views may be.” But because of his initial misgivings about the harshness of the sentence, the district judge invited the government to voluntarily file supplemental briefing explaining why it was seeking a seemingly draconian sentence under the ACCA.
Apparently, the government’s supplemental briefing (which chronicled the full extent of Nigg’s 1976 crime spree and many of his questionable post-release decisions) assuaged the district judge’s concerns. At sentencing, the district judge commented that Nigg’s character “isn’t as ... clean and as reputable as certainly my initial request for supplemental briefing suggested.” Among other things, the government emphasized that “[f]or the past 15-20 years, Nigg has possessed several guns that were not part of his father’s estate,” and “[h]e has refused to turn over these guns or reveal their location.” Finally, on June 6, 2011, the district judge imposed the fifteen-year mandatory minimum prison term to be followed by three years of supervised release, thus giving rise to this appeal.
II. Analysis
It is difficult to overstate the ramifications of Nigg’s status as an ACC. Simple possession of a firearm by a felon is punishable by a term of imprisonment not to exceed ten years. 18 U.S.C. § 924(a)(2). An ACC charged with possession of a firearm, by contrast, is subject to a mandatory minimum sentence of fifteen years in prison and a maximum of life. 18 U.S.C. § 924(e)(1).
Faced with this comparatively harsh punishment, Nigg makes a diverse array of arguments challenging his sentence. Specifically, Nigg contends that his sentence violates the separation of powers doctrine, the Due Process Clause of the Fifth Amendment, his Sixth Amendment right to a jury trial, and the Eighth Amendment’s protections against cruel and unusual punishment. Nigg also argues that the ACCA does not apply because of the timing and nature of his prior Arizona felony convictions.
At oral arguments, Nigg’s counsel seemingly conceded that, given the current state of the law, at least some of his arguments were destined to fail. Nonetheless, counsel expressed optimism that a loss before this Court would be a mere bump in the road on the way to a hard-fought victory at the United States Supreme
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Court. In at least one respect, counsel’s intuition was correct: none of the above arguments carry the day before this Court. Finally, where, as here, the arguments involve legal questions (including constitutional challenges), we conduct a
de novo
review.
United States v. Figueroa-Espana,
A. Separation of Powers.
Nigg’s separation of powers argument goes as follows: giving prosecutors unfettered discretion to use prior convictions against defendants robs the judiciary of discretion, thus violating the separation of powers doctrine. Along these lines, many judges and academics have vociferously criticized the rigidity of mandatory minimum sentences, arguing that they amount to a legislative encroachment on the judiciary’s territory.
See, e.g., United States v. Sidhom,
Nigg’s policy arguments may be fertile ground for a vigorous debate where reasonable minds can disagree. Given the state of the law, however, such debate is little more than academic fodder. It is well-settled that “Congress has the power to define criminal punishments without giving the courts any sentencing discretion[,]” as “determinate sentences were found in this country’s penal codes from its inception[.]”
Chapman v. United States,
B. Fifth Amendment Due Process.
Next, Nigg argues that the mandatory minimum sentence scheme under the ACCA violates his Fifth Amendment Due Process right to an individualized sentence determination. To bolster this contention, Nigg relies heavily on
United States v. Dyck,
As discussed, in some instances, mandatory minimum sentences prevent a judge from fashioning a sentence for a particular defendant based on that defendant’s unique characteristics.
See Patillo,
Nigg argues that this all changed in the wake of
United States v. Booker,
C. Sixth Amendment Right to a Jury Trial.
Nigg also argues that because his prior convictions were not proven to a jury beyond a reasonable doubt, the use of those convictions violates his Sixth Amendment right to a jury trial. Nigg acknowledges that this argument collides head-on with Supreme Court precedent.
See Almendarez-Torres v. United States,
D. Did Nigg’s Prior Convictions Qualify as Three Violent Felonies?
Nigg next argues that the district judge erred when determining that the government met its burden of proof to establish the existence of three prior violent felonies to warrant application of the ACCA. In support of this claim, Nigg makes two basic sub-arguments.
First, Nigg argues that his three prior felony convictions — all based on armed robberies that occurred within a six-day window — should not be viewed as three separate episodes. Rather, they should be viewed as a single episode because each robbery was part and parcel of a single crime spree. To reiterate, under the ACCA, the violent felonies at issue must be “committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). To determine whether the felonies were committed on different occasions, the operative test analyzes whether the crimes were committed
sequentially
or
simultaneously. United States v. Hudspeth,
Using this standard, Nigg’s crimes were obviously committed in a sequential fashion, as it is physically impossible for one person to commit three armed robberies simultaneously at three different locations against three different victims on three different dates. In this sense, Nigg’s circumstances are easily distinguishable from the eases on which he relies.
See, e.g., United States v. Fuller,
Nigg next contends that his prior convictions for armed robbery with a gun do not constitute “violent felonies” under the ACCA. Specifically, the ACCA defines a “violent felony” as follows:
any crime punishable by imprisonment for a term exceeding one year ... that ... (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]
18 U.S.C. § 924(e)(2)(B).
The crux of Nigg’s argument is that because Dennis Oberheim was the leader of the crime spree, the nature and extent of Nigg’s involvement is unclear, and it would be speculative to classify his prior convictions as
violent
felonies with
*937
out additional judicial fact-finding. This argument rests on a faulty premise: that the classification of the conviction isn’t all that important. To the contrary, we employ a “categorical” approach when determining whether a crime is a violent felony.
United, States v. Fife,
Under this approach, we first identify the offense involved and then focus on “the particular elements of the statutory offense, without consideration of the underlying facts of the individual case.”
Fife,
Here, we need not venture into the modified categorical approach. In 1976, Arizona defined “robbery” as the “felonious taking of personal property in the possession of another from his person, or immediate presence, and against his will, accomplished by means of force or fear.” Ariz.Rev.Stat. Ann. § 13-641 (1956). And if the robbery was “committed by a person armed with a gun,” it was punished with a minimum prison term determined by whether it was a first, second, or subsequent offense. Ariz.Rev.Stat. Ann. § 13-643(B) (1956). Moreover, by 1976, Arizona had abolished the distinction between accomplices before-the-fact and principals, treating “all persons concerned in the commission of a crime” as principals. Ariz.Rev.Stat. Ann. §§ 13-138 to 140 (1956).
Nigg’s only colorable argument is that the last disjunctive phrase of the Arizona robbery statute, “or fear,” does not necessarily involve “the use, attempted use, or threatened use of physical force.” However, we have squarely rejected similar arguments in the past.
See United States v. Tirrell,
E. Eighth Amendment.
Finally, Nigg argues that a fifteen-year sentence is so grossly disproportionate to his crime that it constitutes cruel and unusual punishment under the Eighth Amendment. The Supreme Court has recognized that “[t]he Eighth Amendment, which forbids cruel and unusual punishment, contains a narrow proportionality principle that applies to noncapital sentences.”
Ewing v. California,
In determining whether a sentence was grossly disproportionate, the Supreme Court has outlined a three-factor test, which considers: (1) “the gravity of the offense and the harshness of the penalty”; (2) “the sentences imposed on other criminals in the same jurisdiction”; and (3) “the sentences imposed for commission of the same crime in other jurisdictions.”
Solem v. Helm,
A quick review of the case law strongly reinforces that the first factor generally presents an insurmountable bar. “Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.”
Rummel v. Estelle,
Under the circumstances, the decision in
United States v. Hayes,
Nigg counters that
Booker
has fundamentally altered the proportionality analysis because it requires district courts to consider the sentencing objectives and factors under 18 U.S.C. § 3553. But, importantly,
Booker
did nothing to alter the legal landscape of the Eighth Amendment. Applying binding precedent, we reject Nigg’s Eighth Amendment arguments.
See United States v. Moore,
III. Conclusion
Reasonable minds can and do disagree on the propriety of mandatory minimum sentences. And, here, we have some sympathy for Mr. Nigg, whose dangerous past caught up with him decades after he had seemingly done some work to rehabilitate himself. Nonetheless, the ACCA is the law of the land, and “[p]unishment for federal crimes is a matter for Congress, subject to judicial veto only when the legislative judgment oversteps constitutional bounds.”
Warden, Lewisburg Penitentiary v. Marrero,
For the foregoing reasons, Nigg’s sentence is Affirmed.