1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 14a0160p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

U

NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v

.

J AY J. N AGY , Defendant-Appellant

. ┐ │ │ │ │ │ │ │ ┘ No. 13-4151

Appeal from the United St ates District Court

for the Northern District of Ohio at Akron. No. 5:13-cr-00138-1—James S. Gwin, District Judge. Decided and Filed: July 24, 2014

Before: COLE, ROGERS, and ALARCÓN, Circuit Judges. *

_________________ COUNSEL

ON BRIEF: Jeffrey B. Lazarus, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, Melissa M. Salinas, OFFI CE OF THE FEDERAL PUBLIC DEFENDER, Toledo, Ohio, for Appellant. Daniel R. Ranke, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.

_________________ OPINION

_________________ ROGERS, Circuit Judge. Jay J. Nagy a ppeals his mandatory minimum sentence of fifteen years’ imprisonment for being a felon in possession of a firearm and ammunition, and for knowingly possessing a stolen firearm. Nagy argues that his senten ce violates his Sixth

* The Honorable Arthur L. Alarcón, Senior Circuit J udge for the United States Court of Appeals for the Ninth Circuit, sitting by designation. 

### >13-4151 United States v. Nagy Page 2
Amendment rights because his th ree prior convictions, which e nhanced his sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) , were not submitted to the jury or proven beyond a reasonable doubt, as required by the Supreme Court’s decision in Alleyne v. United
States , 133 S. Ct. 2151 (2013). In a ddition, Nagy contends that his sentence is unconstitutional under the Eighth Amendment becaus e it is contrary to the evolving nati onal consensus and standards of decency. Contrary to Nagy’s assertion, Alleyne does not require that a defendant’s prior convictions be submitted to a jury, even if those convictions increase a defendant’s statutory penalties. In addi tion, Nagy’s Eighth Amendment claim is foreclosed by this court’s
decision in United States v. Moore , 643 F.3d 451 (6th Cir. 2011), wh ich squarely held that a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act is not cruel and unusual punishment.
On a snowy night in February 2013, an Ak ron police officer witnessed Nagy rummaging for change in a car that was not his. The officer asked Nagy to come over and talk to him, and, fearing that Nagy would run, plac ed him in handcuffs. Officer Metzger asked Nagy whether “he had anything sharp on him that would poke, pinch, or stab” Metz ger. Nagy imme diately told Metzger that he had a gun in his pocket, which Nagy had taken from a car by mistake. Nagy testified that he had intended to dispose of the gun safely by putting it in a U.S. Post Office Box, and was searching for a mailbox when he stopped to take change from a car as Metzger drove by. Metzger searched Nagy and found a larg e amount of change, DVDs, Nintendo games, multiple cell phones, several iPods, garments, cost ume jewelry, cologne, cigarettes, medications, and lighters—none of which belonged to Nagy.
The government charged Nagy with being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1 ) and 924(e), and with knowingly possessing a stolen firearm, in violation of 18 U.S.C. § 922(j) . A jury found Nagy guilty of both counts. In a sentencing memorandum, the government ar gued that Nagy qualified for a sentence
enhancement under the Armed Career Criminal Act (ACCA) because Nagy had “been previously convicted of six separate violent felonies that he committed on occasions separate from one another, which qualify as predi cate offenses for the ACCA . . . . Consequently, a fifteen-year mandatory minimum sentence is statutorily required.”13-4151 United States v. Nagy Page 3
In response, Nagy contended that the ACCA could not apply to him because under the Supreme Court’s decision in Alleyne , the government was required to submit the facts of Nagy’s prior convictions to a jury, and to prove them beyond a reasonable doubt. Nagy acknowledged that, “[t]he Alleyne Court did not specifically address whether prio r convictions are elements” of a § 924(c) offense that must be submitted to a jur y, but argued that, nevertheless, “[t]he Court’s broad language that ‘any fact that increases the mandatory minimum is an element’ seems to indicate that prior convicti ons must be submitted to the jury as well.” Nagy read Alleyne as implicitly overruling the Court’s decision in Almendarez-Torres v. United States , 523 U.S. 224, 241–42 (1998), which held that pr ior convictions that enhance a defendant’s sentence are not
elements of a crime that must be submitted to a jury, and as expanding and applying the Court’s holding in Apprendi v. New Jersey , 530 U.S. 466 (2000). Nagy request ed that if the district court found that the ACCA applied to his case, the district court sentence him to the statutory mandatory minimum of 180 months.
The government maintained that even though “[i]n Alleyne , the Court extended the Apprendi rule to facts that increase a mandatory-minimum sentence and held that such facts must be submitted to the jury, . . . the Court stated that prior convictions that increase a defendant’s statutory penalties, such as t hose penalties that qua lify under the ACCA, are not elements of the offense that the government is required to prove to a jury.” The government also opposed Nagy’s request for a downward variance.
At sentencing, the district co urt revealed that as part of an ongoing “process to test whether or not the Sentencing Guidelines re flect community sentiment,” the court had distributed post-trial surveys to Nagy’s jurors, asking them to “state what you believe an appropriate sentence is in months” for Nagy’ s crime, given “every past conviction of the
Defendant.” The median recommended sentence was 18 months’ imprisonment. The district court agreed with Nagy that Alleyne ’s “central principle seems to call [ Almendarez-Torres ] specifically in doubt,” but noted that the Court “di dn’t specifically overrul e” it. In addition, the district court acknowledged that in United States v. Mack , 729 F.3d 594, 609 (6th Cir. 2013), the
Sixth Circuit stated e xplicitly that, “Although Almendarez-Torres may stand on shifting sands, the case presently remains good law and we must follow it until the Supreme Court expressly13-4151 United States v. Nagy Page 4

overrules it.” The district court therefore found its elf “hamstrung,” and bound to impose the mandatory minimum sentence.
The district court grouped C ounts 1 and 2, and set Nagy’s base offense level at 24. The court adjusted Nagy’s base offens e level for prior convictions fo r violent felonies, and for the fact that the gun in Nagy’s posse ssion was stolen, and determined Nagy’s offense level to be 33, with a Criminal Category of VI. After considering Nagy’ s extremely troubled childhood, the district court rejected the government’s request to sentence Nagy within the advisory Guideline range of 235 to 293 months, noting that “the sentenci ng range in this case is so completely out of whack with community sentiment.” Instead, the court sentenced Nagy to the mandatory minimum sentence of 180 months’ imprisonment unde r § 924(e), and to a concurrent 60 months on the other count. The judge stated that he had “expressed perhaps ad nauseam the f act that this is not a just punishment. It is nowhere close to a just punishment. It should never have been indicted this way, and the United States Attorney ’s Office should have never brought the case in
this fashion.”
On appeal, Nagy argues that his Sixth Amendment rights were violated because the government did not prove his convictions to a jury beyond a reasonable doubt, which he contends is required under Alleyne . In addition, he argues that the national consensus and evolving standards of decency require this court to find unconstitutional Nagy’s sentence under 18 U.S.C. § 924(e).
The district court correctly sentenced Nagy to 180 months’ imprisonment, as required under the ACCA. Contrary to Nagy’s assertion, Alleyne does not stand for the proposition that a defendant’s prior convictions must be submitted to a jury and proven beyond a reasonable doubt,
even when the fact of those convictions increas es the mandatory minimum sentence for a crime. Alleyne overruled the distinction that the Court drew in Harris v. United States , 536 U.S. 545 (2002), between facts that incr ease the statutory maximum and facts that increase only the mandatory minimum. The Court in Alleyne concluded that such a distinction is “inconsistent
with Apprendi [’s]” requirement that any fact, “other than the fact of a prior conviction,” Apprendi , 530 U.S. at 490, that incr eases the penalty for a crim e beyond the statutory maximum be submitted to a jury and proven beyond a reasonable doubt. Alleyne , 133 S. Ct. at 2163.13-4151 United States v. Nagy Page 5
Apprendi , therefore, preserved the Court’s earlier ruling in Almendarez-Torres that a prior
conviction is not “an element of the related crime” that must be submitted to a jury and proven beyond a reasonable doubt. Almendarez-Torres , 523 U.S. at 246–47. Alleyne states that “any fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury”;
but the Court in Alleyne explicitly declined to overrule Almendarez-Torres ’ “narrow exception to this general rule for the f act of a prior conviction.” Alleyne , 133 S. Ct. at 2155, 2160 n.1.
Nagy frames “the seminal question” in his case as, “is Almendarez-Torres still good law based on the Supreme Cour t cases over the last fifteen years[ ?]” The most recent of those precedents, Alleyne , leaves no doubt that it is . Our own precedent comp els the same conclusion:

“

Almendarez-Torres is still good law and will remain so until the Supreme Court explicitly
overrules it.” United States v. Anderson , 695 F.3d 390, 398 (6th Cir. 2012). Nagy’s contention that the holding in Almendarez-Torres has been “whittled away,” and that “Almendarez-Torres has been overruled by implication,” and is “no longer good law,” is unavailing. “Although Almendarez-Torres may stand on shifting sands, the case presently remains good law and we must follow it until the Supreme Court expressly overrules it.” United States v. Mack , 729 F.3d 594, 609 (6th Cir. 2013). More recently, in United States v. Pritchett , 749 F.3d 417, 434 (6th Cir. 2014), we again made clear that Almendarez-Torres has not been overruled: “ Alleyne did not disturb the holding in Almendarez-Torres .” Accordingly, Nagy’s Sixth Amendment rights were not violated because the government was not requi red to submit Nagy’s prior convictions to the jury.
The 180-month mandatory minimum sentence that Nagy received pursuant to the ACCA does not violate his Eighth Amendment right to be free from cruel and unusual punishment. Nagy argues that his sentence is unconstitutional because of: 1) the co mmunity sentiment as expressed by policymakers; 2) the facts of Nagy’ s offense; 3) Nagy’s te rrible childhood history; and 4) the community sentiment expressed by the jurors at Nagy’s trial. Nagy’s arguments are foreclosed by this court’s precedent. In Moore , we addressed a defendant’s claim that the ACCA’s mandatory minimum penalty of 180 m onths’ imprisonment for being a felon in possession of a firearm violated th at defendant’s Eighth Amendment rights. We held that it did

not:13-4151 United States v. Nagy Page 6
Fifteen years is by any measure a cons iderable amount of time. But while “[s]evere mandatory penalties may be cr uel, . . . they are not unusual in the constitutional sense, having been em ployed in various forms throughout our Nation’s history.” Harmelin , 501 U.S. at 994–95, 111 S. Ct. 2680. In general, Eighth Amendment jurisprudence grants “substantial deference” to the legislatures who determine the types and limits of punishments. Id . at 999, 111 S. Ct. 2680 (Kennedy, J., concurring). It is settled that legislatures may define criminal punishments without givi ng courts sentencing discretion. Id . at 1006, 111 S. Ct. 2680 (citing Chapman v. United States , 500 U.S. 453, 467, 111 S. Ct. 1919, 114 L.Ed.2d 524 (1991). In fact, this C ourt has previously held that the very punishment Moore rece ived—fifteen years under th e Armed Career Criminal Act—withstands Eighth Amendment review as applied to the facts of those cases. United States v. Warren , 973 F.2d 1304, 1311 (6th Cir. 1992); United States v. Pedigo , 879 F.3d 1315, 1320 (6th Cir. 1989). Other courts of appeals have reached the same conclusion. See, e.g. , United States v. Cardoza , 129 F.3d 6, 18 (1st Cir. 1997); United States v. Presley , 52 F.3d 64, 68 (4th Cir. 1995); United States v. Hayes , 919 F.2d 1262, 1266 (7th Cir. 1990); United States v. Baker , 850 F.2d 1365, 1372 (9th Cir. 1988); United States v. Reynolds , 215 F.3d 1210, 1214 (11th Cir. 2000). And we are aware of no court of appeals decision that has struck down the Armed Career Crimin al Act as violative of the Eighth Amendment.

Moore , 643 F.3d at 456. We addressed the same issue in United States v. Brown , 443 F. App’x 956, 960 (6th Cir. 2011), and again determined that imposition of the ACCA’s mandatory
minimum sentence does not violate an i ndividual’s Eighth Amendment rights:
Brown argues that ACCA’s mandatory mini mum as applied to him violates his Fifth Amendment right to due proce ss and equal protec tion and his Eighth Amendment right to be spared cruel and unusual punish ment. We have seen this movie before, and each time it ends badly for the defendant. See, e.g. , United States v. Moore , 643 F.3d 451, 456 (6th Cir. 2011); United States v. Jones , 52 Fed. App’x. 244, 247 (6th Cir. 2002); United States v. Warren , 973 F.2d 1304, 1311 (6th Cir. 1992). All for good reason : “Congress has the power to define criminal punishments without giving th e courts any sentencing discretion,” Chapman v. United States , 500 U.S. 453, 467, 111 S. Ct. 1919, 114 L.Ed.2d 524 (1991), and mandatory prison sentences are not cruel and unusual, Harmelin v. Michigan , 501 U.S. 957, 995–96, 111 S. Ct. 2680, 115 L.Ed.2d 836 (1991). In the teeth of these preceden ts Brown has not identified, nor have we found, any decision from any court invalidating th e application of ACCA’s mandatory minimum to an individual on cons titutional grounds. Brown gives no good reason for making this case the first.
Nagy’s reliance on Attorney General Eric Holder’s memorandum on “Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancemen ts in Certain Drug13-4151 United States v. Nagy Page 7
Cases” is misplaced. That memorandum addresse s “certain drug cases,” not firearms cases, like Nagy’s. Furthermore, the memorandum is a guid epost for Department of Justice prosecutors in exercising prosecutorial discre tion. It does not address the validity of mandatory minimum sentences under the ACCA, and it expressly states that, “The po licy set forth herein is not intended to create or confer any rights, privileges, or benefits in any matter, case, or proceeding.
See United States v. Caceres , 440 U.S. 741 (1979).”
There is no doubt that Nagy’s troubled childhoo d and difficult circumstances contributed
to the situation in which he now finds himself. The district court judge took that fact into account when he granted Nagy a downward varian ce in his sentence. But as we stated in Brown , Congress has the authority to limit the courts’ sentencing discretion, and mandatory minimum
sentences are not cruel and unusual.
The striking and troubling harshness of the sent ence in this case is a result of the statutory mandatory minimum constitutionally imposed by Congres s. This case is but a particularly clear example of our sometimes difficult duty to apply the po licy choices of Congre ss, rather than our

own.
The judgment of the district court is AFFIRMED.