UNITED STATES OF AMERICA v. STEVEN J. NIGG
No. 11-2340
United States Court of Appeals For the Seventh Circuit
January 31, 2012
Before EASTERBROOK, Chief Judge, CUDAHY, Circuit Judge, and PRATT, District Judge.
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 10-CR-273—William C. Griesbach, Judge. ARGUED DECEMBER 1, 2011—DECIDED JANUARY 31, 2012
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 district 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
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
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 returned a one-count indictment charging Nigg with possession of firearms by a convicted felon as an ACC, in violation of
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
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.
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
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, 144 F. Supp. 2d 41, 41 (D. Mass. 2001) (“[T]he government . . . now has the power to determine the severity of the punishment. As a result, courts are required to react passively as automatons and to impose a sentence which the judge may personally deem unjust.“); United States v. Patillo, 817 F. Supp. 839, 841 (C.D. Cal. 1993) (“I . . . will no longer apply this law without protest, and with no hope for change. Statutory mandatory minimum sentences create injustice because the sentence is determined without looking at the particular defendant.“); Erik Luna & Paul G. Cassell, Mandatory Minimalism, 32 CARDOZO L. REV. 1, 1 (2010)
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 “Con-
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, 287 F. Supp. 2d 1016 (D.N.D. 2003) for the proposition that “[t]he concept of individualized sentencing is deeply rooted in legal tradi-
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, 817 F. Supp. at 842 (under the mandatory minimum approach, it makes no difference whether the “defendant has rescued fifteen children from a burning building, or had won the Congressional Medal of Honor“). Importantly, this Court has never recognized a constitutional right to individualized sentencing in non-capital cases. As stated in United States v. Smith, 953 F.2d 1060 (7th Cir. 1992), “a sentencing scheme ‘not considering individual degrees of culpability would clearly be constitutional.‘” Id. at 1065 (quoting Chapman, 500 U.S. at 467); see also United States v. Franklin, 547 F.3d 726, 735 (7th Cir. 2008) (“[T]he Supreme Court and this court have consistently held that mandatory minimum sentences are not a violation of a defendant‘s due process rights.“).
Nigg argues that this all changed in the wake of United States v. Booker, 543 U.S. 220 (2005), because sentencing guidelines are now advisory, not mandatory. Nigg argues that it inescapably follows that district judges must be given discretion to determine whether a sentence is appropriate for a particular defendant. But, the district judge gave Nigg a mandatory minimum sentence. We have consistently rejected the argument that
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, 523 U.S. 224 (1998); see also United States v. Thornton, 463 F.3d 693, 699-700 (7th Cir. 2006) (rejecting the claim “that the jury was required to pass on the existence of all qualifying convictions” under the ACCA); United States v. Salahuddin, 509 F.3d 858, 863 (7th Cir. 2007) (“A prior conviction need not be put to a jury before it may be used to enhance a defendant‘s sentence.“). The Supreme Court‘s decision in Almendarez-Torres remains intact; therefore, we reject Nigg‘s argument.
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
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.”
Using this standard, Nigg‘s crimes were obviously committed in a sequential fashion, as it is physically
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[.]
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 without 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
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, 624 F.3d at 445. But some statutes may be violated in several different ways, “such as a statute which creates more than one crime or one that defines one crime with multiple enumerated modes of commission.” Id. (citations omitted). And, at times, the statute may be violated in a way that does not constitute a violent felony under the ACCA. Id. When this situation arises, it becomes critical to “determine precisely which offense is involved within that statutory scheme.” Id. Under these conditions, courts may employ a more searching “‘modified categorical approach’ to determine the statutory offense at issue.” Id. This “modified” approach allows a court to review a limited universe of documents, such as the charging document, the plea agreement, or the transcript of the colloquy between the judge and the defendant. Id. Even under the “modified” approach, however, “the inquiry must remain an objective one,” focused on the offense itself, not the individual‘s actions. Id.
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, 120 F.3d 670, 680-81 (7th Cir. 1997) (“attempted unarmed robbery” under Michigan law qualified as a violent felony under the ACCA; “under Michigan law, the element of putting in fear means threatening the use of physical force against the person of another“); see also Thomas, 280 F.3d at 1159 (“robbery by intimidation” under Georgia law qualified as a violent felony); United States v. Dickerson, 901 F.2d 579, 584 (7th Cir. 1990) (“robbery” under Illinois law qualified as a violent felony). More importantly, this argument ignores the fact that Nigg was convicted of three counts of armed robbery with a gun. Introducing a gun into a robbery
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, 538 U.S. 11, 20 (2003) (citations and internal quotations omitted). But “narrow” does not equate to strict proportionality. Id. Only extreme sentences that are “grossly disproportionate” to the crime will be deemed cruel and unusual. Id.
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, 463 U.S. 277 (1983);
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, 445 U.S. 263, 272 (1980); see, e.g., Ewing, 538 U.S. at 28-30 (affirming sentence of twenty-five years to life imposed for felony grand theft of three golf clubs under three strikes law); Lockyer v. Andrade, 538 U.S. 63, 73-77 (2003) (upholding sentence of fifty years to life for two shoplifting incidents involving nine videotapes under three strikes law); Harmelin v. Michigan, 501 U.S. 957, 961 (1991) (affirming life in prison without the possibility of parole for first-time offender possessing 672 grams of cocaine); Hutto v. Davis, 454 U.S. 370, 370-71 (1982) (no constitutional error with forty-year sentence for possession with intent to distribute and distribution of approximately nine ounces of marijuana); Rummel, 445 U.S. at 265-66 (upholding life in prison without the possibility of parole under three strikes law where triggering offense was obtaining $120.75 by false pretenses and the loss amount of the two previous fraud felonies was $80.00 and $28.36, respectively); but see Solem, 463 U.S. at 296-97 (Eighth Amendment prohibited a sentence of life without the possibility of parole where the defendant had previously committed six “minor” and “nonviolent” felonies and his triggering offense was uttering a “no account” check for $100.00).
Nigg counters that Booker has fundamentally altered the proportionality analysis because it requires district courts to consider the sentencing objectives and factors under
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 v. Marrero, 417 U.S. 653, 664 (1974). In other words, Nigg‘s arguments are largely directed to the wrong branch of government; relief from any unfairness flowing from mandatory minimum sentences must come from the legislature, not the judiciary. MacEwan, 445 F.3d at 252.
For the foregoing reasons, Nigg‘s sentence is AFFIRMED.
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