NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0002n.06 No. 11-2562 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA Plaintiff-Appellee

v. ANTON I O J ORDAN Def endant- Appellant ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE E ASTERN DI STRI CT OF MI CHI GAN

BEF ORE: BATCHELDER, Chief Circuit J udg e; DAUG HTREY and ROGE RS, C ircuit J udg es. ROGERS , Circuit J udg e. Antonio J ordan pled g uilty to being a felon in possession of a firea rm. The district court found that the Armed Caree r Criminal Act require d a minimum sentenc e of 180 months. The court sentenc ed J ordan to a within-g uidelines sentenc e of 188 months. J ordan challeng es his sentenc e on three g rounds: (1) that the indictment was insufficient to inform him that he wa s being char g ed as an arme d car eer criminal; (2) that two of his prior drugoffe nses wer e not “ser ious drug offe nses,” as define d in the Armed Caree r Criminal Act, and there fore the act should not have applied; and (3) that the application of the Armed Caree r Criminal Act to his case constitutes crue l and unusual punishment in violation of the Eig hth Amendment. J ordan has failed to prese rve the first argument and it would fa i l o n t h e m er its reg ardle ss. He fails on the second g round beca

use at least three of his prior convictions car ried a sufficie ntly long maxi mum sentenc e to qualify as “ser ious drug offe nses.” Finally , we have held numerous times that the application ofNo. 11-2562

United States of America v . Antonio Jordan

the Armed Caree r Criminal Act’s minimum sentenc e does not constitute crue l and unusual punishment. Si nce none of his arg uments has merit, Jordan’s sentenc e is aff irmed. On May 5, 2009, police sear ched Antonio J ordan’ s vehicle while it was parke d at a Pontiac, Michig an g as station, and found a Miroku .38 revolve r. J ordan was in the vehicle at the time. Since J ordan had previously been convicted of a felony , he was indicted for being a felon in possession of

a firea rm under 18 U .S.C. § 922(g) . The indictment also cha rg ed Jordan with violating 18 U.S.C. § 924(e) , the Armed Caree r Criminal Act (“A CCA”), b u t did not mention the ACCA by name or note that it car

ried a mandatory 15-y ear sentenc e. Four day s later, J ordan acknow ledg ed that he had

rec eived, rea d and understood the indictment and knew that, if convicted, he would be sentenc ed to 15 y ear s to life. J ordan then pled g uilty to the char g e, without a Rule 11 plea ag ree ment, rese rving his right to ar g ue that ce rtain pre dicate of fense s that require d application of the ACCA should not be counted. The pre- sentenc e repor t conclude d that J ordan fell under the AC C A and g ave a g uideline rang e of 180 – 188 months. PSR at 15. J ordan objected, arguing that the use of any of his prior convictions t o enhanc e his sentenc e viol ated the Six th Amendment, and that two of hi s four prior drug con v i ct i o n s were ambig uous and there fore should not be counted as “ser ious drug offe nses” f

or ACCA purposes. J ordan did not appea

r for his senten ci n g , and a war rant was issued for his arr est. He was

arr ested ag ain 13 months later. At sen t en ci n g, the district court found that J ordan’ s prior drug distribution violations supported the ACCA enhanc ement, but ref used to add another enhanc ement fo r o bstruction of justice. Considering the circ umstances of the crime, J ordan’ s prior cr i m i n al

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United States of America v . Antonio Jordan history , and his flig ht, the court sentenc ed J ordan to the top of t h e gu i d el i n e rang e: 188 months. J ordan now appea ls, arguing that the indictment was insufficient, that the AC CA enhanc ement should not have applied, and that the application of the ACCA to him constitutes crue l and unusual punishment. J ordan has not prese rved hi s indictment argument. Any motion alleg ing a defe ct in the indictment must be made befor e trial. Fe d. R. Crim. P. 12(b)( 3)(B ). The only exceptions are when the indictment “fa ils to invoke the court’s jurisdiction or to state an offe nse.” Id. I n his brief, J ordan “re cog nizes the AC C A i s n o t a separ ate criminal offe nse.” J ordan Br

. at 11. Acc ording ly , the exception does not apply

. J ordan failed to challeng e the indictment befor e trial and there fore cannot challeng e it now. Had J ordan prese rved the argument, it would still fail. Where the indictment is challeng ed for the first time on appea l, this court must construe the indictment l i b erally in favor of its sufficie ncy . United States v. Teh , 535 F.3d 511, 516 (6th Cir. 2008). Moreove r, the defe ndant must demonstrate pla in error

to succe ed. Id. J ordan c annot do so. J ordan argues that the indictment must have provided notice that he was being char g ed as an

arme d car eer criminal or that he was alleg ed to have three prior qualifying felonies. Howeve r, an indictment need not list ear lier convictions if they are used only to authorize an enhanc ed sentenc e. Almendarez- Torres v. United States , 523 U.S. 224, 226 (199 8 ). Fu rt hermore , J ordan knew what penalties he was fac ing. J ordan signe d an acknow ledg ment of indictment stating that he understood that he was fac ing a sentenc e of fiftee n y ear s to life if convicted. R. 8. Moreove r, his attorney ’s

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United States of America v . Antonio Jordan challeng es focuse d on the predic ate offe nses and the ACCA was discussed at leng th in J ordan’ s plea hear ing. Although J ordan notes that his counsel attempted to withdraw from t h e case due to brea kdowns in communications, counsel noted at the plea hear ing that communications had been

re s t o red. J ordan knew the sentenc e he was fac ing and knew what the g overnme nt nee d ed t o demonstrate. H e ca

nnot show plain err or. J ordan’ s second argument fails beca use at least three of his prior convictions qu al i fy as “ser ious drug offe nses,” thus qualify ing him for the ACCA’s sentenc e enhanc ement. J ordan’ s presentenc e re p o rt shows four convictions for the delivery or m anufa cture of l ess t han 50 g rams of a controlled substance. PSR at 6–9. The ACCA sentenc ing enhanc ement applies to any one with three previous convic tions for serious drug offense s. 18 U.S.C. § 924(e) (1). The definition of “se rious drug offe nse” includes violations of state law “involving manufa cturing , distributing, or possessing with intent to manufa cture or di s tribute, a controlled substance .

. . for which a max imum term of imprisonment of ten y ear s or more is presc ribed by law.” Id. at § 924(e) (2)( A)(ii). J ordan conce des that his 1991 and 1998 convictions qualify

. For the ACCA enhanc ement to apply , either his 1993

or 1999 convic t i o n m u st also qualify

. Since they both do, the ACCA’s sentenc e enhanc ement applies. J o rd an ar g ues that his 1993 conviction does not qualify beca use the final judgme nt is ambig uous. The judgme nt lists only “sec ond offe nse/double penalty” as the crime and cites only a Michig an statute providing enhanc ed sentenc es to individua ls wh o c o mm it s e c o n d o f f e n s e s . R. 2 9

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. Howeve r, the char g ing document shows that the underly ing offe nse was a violation of Mich. Comp.

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United States of America v . Antonio Jordan

L aws § 333.7401(2)( a)( iv), which bans the manufa cture , delivery , or possess i o n wi th intent to manufa cture or deliver of under 50 g rams of a controlled substance. The maxi mum punishment for that offe nse is 20 y ea rs i m p ri s o nment. Id. This qualifies it as a ‘ser ious drug offe nse’ under the ACCA. Since this was the same of fense he was convicted of in 1991 (PSR at 6), Jordan qualified for the double sentenc e. His plea questionnaire provides further evidenc e, as it lists two c ounts of “deliver y of controlled substance” as the offe nse and forty y ear s as the maxi mum sentenc e. R. 29-3. I n case s wher e the statutory definition is a mbiguous, “this court may also ref er to ‘ the terms of the ch arging document, the terms of a plea ag ree ment or transcr ipt of colloquy betwee n judge an d defe ndant in which the fac tual basis for the plea wa s confirme d by the defe ndant, or to some compar able judicial rec ord of this information.’” United St ates v. T aylor , 301 F. App’x 5 0 8 , 5 17 (6th Cir. 2008) (quoting Shepard v. United States , 544 U.S. 13, 26 (2005))

. I n Un i t ed S tates v. Taylor , the only case J ordan cites on this point, this court found that Michi gan ’s second offe nse statute cre ated the kind of ambiguity that require s examining the char g in g d o cu ment and plea ag ree ment. Id. at 5 1 9

. Do i n g so here , it become s clea r that in 1993, J ordan was convicted of a second offe nse of delivering drug s and fac ed a maxi mum penalty of 40 y ear s imprisonment. When added to the two uncontested convictions, this quali fies as a third conviction for a serious drug offe nse, and the ACCA applied, re quiring a 15-y ear minimum sentenc e. Finally , contra

ry to J ordan’ s argument, the application of the ACCA in his case does not constitute crue l and unusual punishment in violation of the Eig hth Amendment. “This court has consistently held that the 180-month minimum sentenc e under the ACCA does not violate the Eig ht

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United States of America v . Antonio Jordan Amendment, and is neither disproportionate to the offe nse, n o r crue l and unusual punishment.” United States v. Lemons , 480 F. Ap p ’x 4 0 0 , 405 (6th Cir. 2012). “‘Cong ress has the power to define criminal punishments without giving the courts any sentenc ing discretion,’ and mandatory prison sentenc es are not crue l and unusual.” United States v. Brown , 443 F. App’x 956, 960 (6th Cir. 2011). “In the teeth of these prec edents [t he defe ndant] has not identified, nor have we found, any decision from any court invalidating the application of ACCA’s mandatory minimum to an individual on constitutional gro u n d s . ” Id. J ordan, with seven previous convictions (PSR at 6-9), at least seven more arr ests (PSR at 10), and a flig ht f rom sentenc ing on his r ecor d, does not ha ve a compelling case for this to be the fir st. Be cause we co n cl u d e that J ordan’ s sentenc e was valid, we aff irm the district court’s judgme nt.

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