                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 00-3442
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Northern District of Iowa
Dane Allen Yirkovsky,                   *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: April 11, 2001

                                  Filed: August 1, 2001
                                   ___________

Before McMILLIAN, LOKEN and HANSEN, Circuit Judges.
                           ___________

McMILLIAN, Circuit Judge.

      Dane Allen Yirkovsky ("Yirkovsky") appeals from a final judgment entered in
the United States District Court1 for the Northern District of Iowa sentencing him to
180 months in prison after he plead guilty pursuant to a written plea agreement to
possession of ammunition as a felon in violation of the Armed Career Criminal Act
("ACCA"), 18 U.S.C. §§ 922(g) and 924(e). See United States v. Yirkovsky,
No. 1:99CR0064-001 (N.D. Iowa Oct. 12, 2000) (judgment). For reversal, Yirkovsky

      1
        The Honorable Michael J. Melloy, United States District Judge for the Northern
District of Iowa.
argues that his sentence was grossly disproportionate to the gravity of the offense,
thereby constituting cruel and unusual punishment in violation of the Eighth
Amendment to the United States Constitution.

       Jurisdiction in the district court was proper based upon 18 U.S.C. § 3231. We
have jurisdiction pursuant to 28 U.S.C. § 1291. The notice of appeal was timely filed
pursuant to Fed. R. App. P.4(a). For the reasons set forth below, and pursuant to 8th
Cir. R. 47B, we affirm the judgment of the district court.

        The factual background is based on the facts to which Yirkovsky stipulated in
his plea agreement and to which he testified in his hearings in the district court. In late
fall or early winter of 1998, Yirkovsky was living with Edith Turkington at her home
in Cedar Rapids, Iowa. Instead of paying rent, Yirkovsky agreed to remodel a
bathroom at the home and to lay new carpeting in the living room and hallway. While
in the process of removing the old carpet, Yirkovsky found a Winchester .22 caliber,
super x, round. Yirkovsky put the round in a small box and kept it in the room in which
he was living in Turkington's house.

       Subsequently, Yirkovsky's ex-girlfriend filed a complaint alleging that Yirkovsky
had her property in his possession. A police detective spoke to Yirkovsky regarding
the ex-girlfriend's property, and Yirkovsky granted him permission to search his room
in Turkington's house. During this search the detective located the .22 round.
Yirkovsky admitted to police that he had placed the round where it was found by the
detective.

       Yirkovsky was indicted on September 28, 1999, and plead guilty to one count
of being a felon in possession of ammunition after having previously been convicted of
three or more violent felonies, 18 U.S.C. § § 922(g), 924(e). Title 18 U.S.C.




                                           -2-
§ 922(g) provides that it is unlawful for a person convicted of a crime punishable by
imprisonment for a term exceeding one year, to possess ammunition. Section 924(e)(1)
provides:

      In the case of a person who violates section 922(g) of this title and has
      three previous convictions . . . for a violent felony . . . committed on
      occasions different from one another, such person shall be . . .
      imprisoned not less than fifteen years, and notwithstanding any other
      provision of the law, the court shall not suspend the sentence of, or grant
      a probationary sentence to, such person with respect to the conviction
      under 922(g).

U.S.S.G. § 4B1.4(a) provides that "[a] defendant who is subject to an enhanced
sentence under the provisions of 18 U.S.C. § 924(e) is an armed career criminal."

       Yirkovsky entered into a written plea agreement in which he acknowledged guilt
as charged and further acknowledged that under U.S.S.G § 4B1.4 his base offense level
should be calculated by starting at 33, with a three-level downward adjustment for
acceptance of responsibility, resulting in a final offense level of 30. The plea agreement
further stated that Yirkovsky understood that under U.S.S.G. § 5G1.1(b) he was subject
to a 15-year (180 months) statutory minimum sentence even if the guideline range
otherwise established is below 180 months.2

       Because Yirkovsky had two convictions for second degree burglary and one for
attempted burglary, and was convicted of burglary of three United States post offices,
the district court found that Yirkovsky was an armed career criminal under 18 U.S.C.
§ 924(e). See Transcript of plea hearing at 15-22. Yirkovsky did not object to this


      2
       U.S.S.G. § 5G1.1(b) provides that "[w]here a statutorily required minimum
sentence is greater than the maximum of the applicable guideline range, the statutorily
required minimum sentence shall be the guideline sentence."

                                           -3-
finding. The district court sentenced Yirkovsky to the 180-month mandatory minimum
sentence required by 18 U.S.C. § 924(e) but withheld the actual entry of the sentence,
giving Yirkovsky the opportunity to file a brief on the issue of whether or not the
fifteen-year mandatory minimum sentence constitutes cruel and unusual punishment
under the Eighth Amendment. See Transcript of sentencing hearing at 9.
Subsequently, the district court held that it had no discretion in the matter and
sentenced Yirkovsky to 180 months imprisonment.3

       On appeal, Yirkovsky argues that the sentencing guidelines which require that
he be imprisoned for 180 months violate his right to be free from cruel and unusual
punishment under the Eighth Amendment to the United States Constitution. In support
of this position, he argues that a sentence of 180 months in prison is grossly
disproportionate to his crime of having in his possession only one round of ammunition.
In further support of his argument, Yirkovsky cites decisions from the Northern District
of Iowa from 1994 through 1999, in which defendants were sentenced for violations
of 18 U.S.C. § § 922(g)(1) and 924(e). See Appellant's Ex. 1. Yirkovsky suggests
that, although his crime was the least serious, he received a sentence which was
disproportionately lengthy when compared to these cases. However, Yirkovsky
acknowledges in his brief to this court that "[e]very circuit to have considered [this]
issue has concluded that the fifteen year mandatory minimum sentence under the
ACCA is neither disproportionate to the offense nor cruel and unusual punishment."
Brief for Appellant at 10 (citing United States v. Reynolds, 215 F.3d 1210 (11th Cir.
2000), cert. denied, 121 S. Ct. 500 (2000)).




      3
        The district court acknowledged that, with a base offense level of 33, with a
three-level downward adjustment and a criminal history category of VI, the sentencing
range "would normally be 168 to 210 months, but because of the fifteen-year
mandatory minimum, that becomes 180 to 210 months." Transcript of plea hearing at
22.

                                          -4-
       In United States v. Rudolph, 970 F.2d 467, 470 (8th Cir. 1992) (Rudolph), this
court held that the mandatory minimum sentence of fifteen years imprisonment under
§ 924(e) is not cruel and unusual punishment and does not violate the Eighth
Amendment. Subsequently, we held in United States v. Villar, 184 F.3d 801, 803 (8th
Cir. 1999), that our consideration of this issue is foreclosed by our decision in
Rudolph.4 We, therefore, hold that the district court did not err in finding that
imposition of the statutorily mandated minimum sentence of 15 years (180 months) is
not cruel and unusual punishment under the Eighth Amendment. We affirm the
judgment of the district court imposing this sentence. See 8th Cir. R. 47B.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




      4
        In our view Yirkovsky's sentence of fifteen years is an extreme penalty under
the facts as presented to this court. However, as we state above, our hands are tied in
this matter by the mandatory minimum sentence which Congress established in 18
U.S.C. § 924(e).

                                         -5-
