PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 04-4445

CECIL EUGENE CHEEK,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of South Carolina, at Florence.

Terry L. Wooten, District Judge.

(CR-03-1061)

Argued: May 27, 2005

Decided: July 19, 2005

Before NIEMEYER, WILLIAMS, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion,

in which Judge Williams and Judge Shedd joined. 

COUNSEL

ARGUED: Michael Allen Meetze, Assistant Federal Public

Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Florence, South Carolina, for Appellant. Mark C. Moore, Assistant United

States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,

Columbia, South Carolina, for Appellee. ON BRIEF: J. Strom Thurmond, Jr., United States Attorney, Columbia, South Carolina, Rose

Mary Parham, Assistant United States Attorney, Florence, South Carolina, for Appellee.
OPINION

NIEMEYER, Circuit Judge: 

The issue on appeal is whether the enhancement of a criminal

defendant’s sentence on the basis of three previous convictions violates his Sixth Amendment rights when the prior convictions were not

alleged in the indictment or admitted by the defendant during his plea

colloquy. We conclude that the defendant’s Sixth Amendment rights

were not so violated and accordingly affirm. See United States v.

Booker, 125 S. Ct. 738, 756 (2005) (reaffirming Apprendi v. New Jersey, 530 U.S. 466 (2000), and holding that under the Sixth Amendment, the fact of a prior conviction need not be submitted to the jury

or admitted by the defendant for it to serve as the basis for a sentence

enhancement). 

I

Pursuant to his guilty plea, Cecil Eugene Cheek was convicted in

South Carolina of possessing marijuana with the intent to distribute

it, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D), and of possessing a firearm and ammunition as a convicted felon, in violation

of 18 U.S.C. §§ 922(g)(1), 924(a), and 924(e). The district court sentenced Cheek to 190 months’ imprisonment, employing the Armed

Career Criminal Act, 18 U.S.C. § 924(e), and its corresponding provision in the Sentencing Guidelines, U.S.S.G. § 4B1.4, to enhance

Cheek’s sentence beyond the maximum of the otherwise applicable

sentencing range, because Cheek was a recidivist who had been convicted of at least three prior qualifying offenses.* The record shows,

and the district court took judicial notice, that Cheek had previously

been convicted in South Carolina state court of possession with intent

to distribute marijuana (1981); assault and battery of a high and

*Section 924(e) enhances the sentence for a violation of § 922(g) to a

term of imprisonment of not less than 15 years when the defendant has

"three previous convictions . . . for a violent felony or a serious drug

offense, or both, committed on occasions different from one another." 18

U.S.C. § 924(e)(1). Section 4B1.4 of the Sentencing Guidelines correspondingly increases the defendant’s offense level and criminal history

category. 

2 UNITED STATES v. CHEEK
aggravated nature (1990); four counts of distribution of marijuana

(1994); and possession with intent to distribute marijuana (2001).

Cheek does not challenge the existence of his prior convictions or

their qualification as predicate offenses under § 924(e). 

II

On appeal, Cheek contends for the first time that since the fact of

his prior qualifying offenses was not alleged in the indictment to

which he pleaded guilty, his Sixth Amendment rights were violated

when his sentence was enhanced based on that fact. More specifically,

Cheek argues that the Sixth Amendment "requires that facts which

increase [his] sentence above the statutory maximum be pled in an

indictment and submitted to a jury for proof beyond a reasonable

doubt" and that this requirement "appl[ies] to prior convictions used

to enhance a sentence under a recidivist statute." While he acknowledges that in Almendarez-Torres v. United States, 523 U.S. 224, 226

(1998), the Supreme Court held that the Constitution does not require

the government to plead the fact of a prior conviction in the indictment, he maintains that the holding in Almendarez-Torres, even

though not since overruled, was called into question in Apprendi v.

New Jersey, 530 U.S. 466 (2000). See id. at 521 (Thomas, J., concurring). Cheek argues that "[e]ven though Almendarez-Torres remains

intact, a valid argument exists that Apprendi applies to sentencing

pursuant to a recidivist statute, and that Blakely [v. Washington, 124

S. Ct. 2531 (2004),] has extended Apprendi to require that the fact of

a defendant’s prior convictions . . . be pled in an indictment and

proved to a jury beyond a reasonable doubt." Cheek claims that "it is

only a matter of time before the United States Supreme Court revisits

and overrules its holding in Almendarez-Torres" and that therefore we

should treat his prior convictions as elements of the offense under the

Armed Career Criminal Act. Of course, to succeed, Cheek must demonstrate plain error. See Fed. R. Crim. P. 52(b). 

In Almendarez-Torres, an alien pleaded guilty to having been

found in the United States after being deported, in violation of 8

U.S.C. § 1326(a). 523 U.S. at 227. That violation subjected

Almendarez-Torres to a maximum term of imprisonment of two

years. Section 1326(b), however, extends the maximum term of

imprisonment to 20 years if the prior "removal was subsequent to a

UNITED STATES v. CHEEK 3
conviction for commission of an aggravated felony." 8 U.S.C.

§ 1326(b)(2). Almendarez-Torres admitted that his earlier deportation

had taken place pursuant to three prior convictions for aggravated felonies, but he argued that since his indictment had made no mention

of the earlier convictions, he could only be sentenced to a maximum

of two years. 523 U.S. at 227. The Supreme Court rejected that argument, concluding that the Sixth Amendment did not require that the

fact of prior convictions be treated as an element of AlmendarezTorres’ offense. The Court explained that recidivism "is a traditional,

if not the most traditional, basis for a sentencing court’s increasing an

offender’s sentence," id. at 243, and "that recidivism ‘does not relate

to the commission of the offense, but goes to the punishment only,’"

id. at 244 (quoting Graham v. West Virginia, 224 U.S. 616, 629

(1912)) (emphasis omitted). The Court concluded that "to hold that

the Constitution requires that recidivism be deemed an ‘element’ of

petitioner’s offense would mark an abrupt departure from a longstanding tradition of treating recidivism as ‘go[ing] to the punishment

only.’" Id. (quoting Graham, 224 U.S. at 629). 

Two terms later, in Apprendi v. New Jersey, 530 U.S. 466 (2000),

the Supreme Court addressed the question of whether a factual determination under a New Jersey "hate crime" statute authorizing an

increase in the maximum prison sentence for an underlying state firearm offense was required by the Constitution to be made by a jury on

the basis of proof beyond a reasonable doubt. See id. at 469. Answering that question in the affirmative, the Court established the rule that

"[o]ther than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a reasonable doubt." Id. at

490 (emphasis added). Reaffirming its holding in Almendarez-Torres,

the Court explained that Almendarez-Torres "represents at best an

exceptional departure from the historic practice" of applying due process and Sixth Amendment protections to determinations extending

the length of a defendant’s sentence beyond the maximum of the statutory range. Id. at 487. The need for such protections was diminished

in Almendarez-Torres, the Court continued, because of "the certainty

that procedural safeguards attached to any ‘fact’ of prior conviction,

and the reality that Almendarez-Torres did not challenge the accuracy

of that ‘fact’ in his case." Id. at 488. Differentiating the New Jersey

"hate crime" law from recidivism-based enhancements, the Court

4 UNITED STATES v. CHEEK
stated that while "recidivism ‘does not relate to the commission of the

offense’ itself, New Jersey’s biased purpose inquiry goes precisely to

what happened in the ‘commission of the offense.’" Id. at 496 (quoting Almendarez-Torres, 523 U.S. at 244). The Court explained:

[T]here is a vast difference between accepting the validity

of a prior judgment of conviction entered in a proceeding in

which the defendant had the right to a jury trial and the right

to require the prosecutor to prove guilt beyond a reasonable

doubt, and allowing the judge to find the required fact under

a lesser standard of proof. 

Id.

Finally this year, the Supreme Court again reaffirmed the

Almendarez-Torres exception for recidivism-based enhancements in

sentencing. See United States v. Booker, 125 S. Ct. 738, 756 (2005)

("reaffirming [its] holding in Apprendi" and incorporating the

Almendarez-Torres recidivism exception); cf. Shepard v. United

States, 125 S. Ct. 1254, 1263 (2005) (addressing the scope of the

recidivism exception). 

It is thus clear that the Supreme Court continues to hold that the

Sixth Amendment (as well as due process) does not demand that the

mere fact of a prior conviction used as a basis for a sentencing

enhancement be pleaded in an indictment and submitted to a jury for

proof beyond a reasonable doubt. Even were we to agree with

Cheek’s prognostication that it is only a matter of time before the

Supreme Court overrules Almendarez-Torres, we are not free to overrule or ignore the Supreme Court’s precedents. See State Oil Co. v.

Kahn, 522 U.S. 3, 20 (1997) ("[I]t is [the Supreme] Court’s prerogative alone to overrule one of its precedents"). This is so even if it

appears that "‘changes in judicial doctrine’ [have] significantly undermined" a prior holding. United States v. Hatter, 532 U.S. 557, 567

(2001) (quoting Hatter v. United States, 64 F.3d 647, 650 (Fed. Cir.

1995)); see also Rodriguez de Quijas v. Shearson/Am. Express, Inc.,

490 U.S. 477, 484 (1989). 

III

Moreover, several sound reasons may explain why the

Almendarez-Torres recidivism exception has not been overruled. 

UNITED STATES v. CHEEK 5
First, recidivism involves the status of a defendant as a repeat

offender based on past convictions and not the offense being tried

before the court. See Oyler v. Boles, 368 U.S. 448, 452 (1962).

Indeed, recidivism would generally be irrelevant to the conduct being

tried, as it results only in a more severe punishment for a defendant

who is a habitual offender. As the Supreme Court observed in

Almendarez-Torres, proof of the fact of a prior conviction is not necessary to establish that the defendant’s conduct failed to conform with

the prescriptive language of the criminal statute at hand, but rather is

"distinct" and "does not relate to the commission of the offense." 523

U.S. at 244 (quoting Graham, 224 U.S. at 629) (internal quotation

marks omitted). 

Second, and related to the first point, a prior conviction has already

been determined in accordance with the safeguards of due process and

the Sixth Amendment and need not be subjected to a jury for a second

time. See Jones v. United States, 526 U.S. 227, 249 (1999) (distinguishing recidivism on this basis). As a product of our judicial administration, the fact of conviction is of record and needs only to be

judicially noticed or otherwise summarily demonstrated to the court

to become part of the sentencing proceedings. Cf. Shepard, 125 S. Ct.

at 1263 (limiting judicial notice of a prior conviction when the fact

of a prior conviction or its qualification as a predicate offense is disputed). 

Third, if prior convictions were generally made elements of criminal offenses, the introduction of a prior conviction at trial could

unfairly prejudice the defendant. See Old Chief v. United States, 519

U.S. 172, 191 (1997); Spencer v. Texas, 385 U.S. 554, 560 (1967).

Yet, the government has a legitimate interest, apart from punishing a

defendant for a particular offense, in having habitual criminals punished more severely during the sentencing process. As the Supreme

Court has noted:

States have a valid interest in deterring and segregating

habitual criminals. We have said before that a charge under

a recidivism statute does not state a separate offense, but

goes to punishment only. And we have repeatedly upheld

recidivism statutes "against contentions that they violate

constitutional strictures dealing with double jeopardy, ex

6 UNITED STATES v. CHEEK
post facto laws, cruel and unusual punishment, due process,

equal protection, and privileges and immunities."

Parke v. Raley, 506 U.S. 20, 27 (1992) (citations omitted). 

And fourth, it has been the longstanding custom for over 200 years

to treat recidivism as a sentencing factor, and not as an element of the

instant offense. See Jones, 526 U.S. at 249 (noting "the tradition of

regarding recidivism as a sentencing factor"); Almendarez-Torres,

523 U.S. at 243 (referring to recidivism as "the most traditional" basis

for a sentencing enhancement); Parke, 506 U.S. at 26 (noting that

recidivism statutes have had "a long tradition in this country that dates

back to colonial times"); see also Oyler, 368 U.S. at 451 & n.5; Graham, 224 U.S. at 629. 

It is thus abundantly clear that the Sixth Amendment (as well as

due process) does not demand that the mere fact of a prior conviction

used as a basis for a sentencing enhancement be pleaded in an indictment and submitted to a jury for proof beyond a reasonable doubt.

Accordingly, we affirm. 

AFFIRMED

UNITED STATES v. CHEEK 7