                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 2, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 10-6156
          v.                                           (W.D. Oklahoma)
 TIREECE COLE-JACKSON,                          (D.C. No. 5:09-CR-00345-R-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.



      After examining the briefs and appellate record, this court has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Accordingly, we

grant the parties’ requests and order the case submitted without oral argument.

                                I. INTRODUCTION

      Tireece Cole-Jackson pleaded guilty to a single count of being a felon in

possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1).


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
The district court concluded Cole-Jackson had three qualifying prior felonies

under the Armed Career Criminal Act (“ACCA”) and was, therefore, subject to a

fifteen-year minimum-mandatory sentence. 18 U.S.C. § 924(e)(1). On appeal,

Cole-Jackson asserts the district court erred in counting as an ACCA-qualifying

conviction his 1995 Oklahoma state conviction (CF-1995-1347) for possession of

cocaine with intent to distribute. Although he was certified as an adult for

purposes of resolving those charges, Cole-Jackson claims it was improper to

count CF-1995-1347 because he was a juvenile at the time of the commission of

the crime. He further contends the fifteen-year sentence imposed by the district

court amounts to cruel and unusual punishment in violation of the Eighth

Amendment. This court exercises jurisdiction pursuant to 18 U.S.C. § 3742(a)

and 28 U.S.C. § 1291, and affirms the district court’s judgment.

                               II. BACKGROUND

      The events leading to Cole-Jackson’s arrest and prosecution on gun charges

began with a drug deal in Oklahoma City, Oklahoma. Cole-Jackson’s girlfriend,

Jennifer Arnett, received a telephone call from one of her regular customers

seeking to purchase crack cocaine. Cole-Jackson and Arnett drove to a

prearranged rendevous point to complete the drug transaction. Unbeknownst to

Arnett, her regular customer was a police confidential informant. As soon as the

parties completed the drug transaction, police officers arrested Cole-Jackson and

Arnett. Police officers discovered a loaded semiautomatic pistol, with ten rounds

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of ammunition in the magazine, in the waistband of Cole-Jackson’s pants. A

federal grand jury indicted Cole-Jackson on one count of knowingly possessing

the firearm and ammunition after having been previously convicted of a felony.

28 U.S.C. § 922(g)(1). Cole-Jackson entered a plea of guilty to the § 922(g)(1)

charge.

      At sentencing, the parties vigorously contested whether Cole-Jackson was

subject to the enhanced penalties set out in the ACCA. 18 U.S.C. § 924(e)(1).

Cole-Jackson conceded he had two qualifying convictions, but asserted CF-1995-

1347 did not qualify because he was a minor at the time he committed the crime.

He further asserted the ACCA would be unconstitutional as applied to him if the

district court were to interpret it to embrace criminal convictions committed by

minors as qualifying convictions for purposes of applying the fifteen-year

minimum-mandatory sentence set out in § 924(e)(1). As support for this

assertion, Cole-Jackson cited the Eighth Amendment’s Cruel and Unusual

Punishment Clause. In response, the United States noted that although a juvenile

at the time of the commission of CF-1995-1347, Cole-Jackson was prosecuted as

an adult and was certified under Oklahoma state law to stand trial as an adult.

Because Cole-Jackson was convicted as an adult of a serious drug crime, the

United States asserted CF-1995-1347 fell within the purview of the ACCA.

Finally, the United States noted federal courts have routinely rejected the

argument that the Eighth Amendment bars the application of an ACCA-enhanced

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penalty because predicate felonies occurred when the defendant was a juvenile.

The district court rejected Cole-Jackson’s arguments, varied downward from the

advisory Guidelines range, and sentenced Cole-Jackson to the applicable ACCA

minimum-mandatory sentence of fifteen-years’ imprisonment.

                                III. DISCUSSION

A. Is CR-1995-1347 a Qualifying Prior Felony for Purposes of the ACCA?

      This court recently rejected the exact argument advanced by Cole-Jackson

on appeal. United States v. Johnson, No. 10-6066, 2010 WL 4304114, at *4-*6

(10th Cir. Nov. 2, 2010). In Johnson, the defendant contended a prior Missouri

conviction did not qualify as an ACCA predicate felony because he was seventeen

at the time he committed the crime, even though he was tried and convicted as an

adult. Id. at *5. This court rejected Johnson’s argument, holding as follows:

             Under Missouri law, defendant Johnson was classified as an
      adult for the offenses he committed at age 17 because of the nature
      of the charges. On the other hand, as Mr. Johnson points out, federal
      law considers a person under 18 to be a juvenile. 18 U.S.C. § 5031.
      Federal law would treat the two Missouri offenses as acts of juvenile
      delinquency, defendant argues, and under the ACCA definition . . .
      they would not qualify as predicate offenses.

             Defendant Johnson submits the federal definition of juvenile
      should be used to determine whether a predicate offense meets the
      definition of such a conviction under the ACCA. He says that using
      the federal definition of juvenile will promote uniformity in
      application of the ACCA and is consistent with the Supreme Court’s
      categorical approach. . . . This argument fails because it is clear that
      federal law does not determine whether the Missouri convictions, or
      either of them, qualify as “previous convictions” under the ACCA.
      The ACCA appears in Chapter 44 of Title 18. Section 921 provides

                                         -4-
      the definitions applicable to that chapter. And that section provides
      this definition: “What constitutes a conviction of [a crime punishable
      by imprisonment for a term more than one year] shall be determined
      in accordance with the law of the jurisdiction in which the
      proceedings were held.” 18 U.S.C. § 921(a)(20) (emphasis added).
      This provision has been described by the Supreme Court as a
      “choice-of-law clause.” Beecham v. United States, 511 U.S. 368, 369
      (1994). Therefore, because Missouri treated the offenses of
      conviction as felony crimes, i.e., treated Mr. Johnson as an adult,
      those convictions were properly counted as predicate offenses under
      the ACCA.

             Our holding today is in accord with our holding in the
      unpublished case of United States v. Wilson, 95 F. App’x 970, 974
      (10th Cir. 2004), vacated on other grds., 543 U.S. 1103 (2005), and
      the reasoning of United States v. Lender, 985 F.2d 151 (4th Cir.
      1993), and United States v. Cure, 996 F.2d 1136 (11th Cir. 1993).
      We have found no decision by any federal court to the contrary. Mr.
      Johnson’s arguments are unavailing in light of the clarity of the
      statutory provisions at issue.

Id. at *5-*6 (footnote omitted). The conclusion in Johnson that the ACCA

embraces prior felony convictions in which the defendant was treated as an adult,

even if the defendant was a juvenile at the time of the commission of the crime, is

binding on this panel and fully resolves Cole-Jackson’s arguments on appeal.

B. Does Cole-Jackson’s Fifteen-Year Sentence Violate the Eighth Amendment?

      Cole-Jackson asserts that to the extent the ACCA exposes him to a fifteen-

year minimum-mandatory sentence based on criminal conduct committed as a

juvenile, § 924(e)(1) is unconstitutional as applied to him. In response, the

United States notes that every court to consider this question has rejected the

argument advanced by Cole-Jackson on appeal. We review this constitutional


                                         -5-
question de novo. United States v. Grassie, 237 F.3d 1199, 1207 (10th Cir.

2001).

         Although this court has yet to consider this question, other courts have

uniformly rejected the notion that use of an adult conviction like CF-1995-1347 in

reaching a sentencing determination implicates the Eighth Amendment. See, e.g.,

United States v. Graham, 622 F.3d 445, 461-464 (6th Cir. 2010) (holding that use

of adult conviction for crime committed before age of eighteen for purposes of

the mandatory-minimum life sentence under 21 U.S.C. § 841(b)(1)(A) did not

violate the Eighth Amendment); United States v. Jones, 574 F.3d 546, 553 (8th

Cir. 2009) (“[T]he Eighth Amendment does not prohibit using an adult conviction

based on juvenile conduct to increase a sentence under the ACCA . . . .”); United

States v. Salahuddin, 509 F.3d 858, 863-64 (7th Cir. 2007) (same); United States

v. Wilks, 464 F.3d 1240, 1243 (11th Cir. 2006) (same). For all the reasons set out

in the cases cited above, this court has no doubt it is proper under the Eighth

Amendment to consider adult criminal convictions, even though the defendant

was under the age of eighteen at the time of the commission of the crime, in

arriving at an appropriate sentence for a recidivist offender who continues to

commit crimes into adulthood. Wilks, 464 F.3d at 1243 (“It is one thing to

prohibit capital punishment for those under the age of eighteen, but an entirely

different thing to prohibit consideration of prior youthful offenses when

sentencing criminals who continue their illegal activity into adulthood.”). The

                                           -6-
fifteen-year sentence imposed by the district court on Cole-Jackson, the minimum

sentence applicable under the ACCA, is entirely consistent with the Eighth

Amendment. 1

                               V. CONCLUSION

      For those reasons set out above, sentence imposed by the district court is

hereby AFFIRMED.

                                              ENTERED FOR THE COURT


                                              Michael R. Murphy
                                              Circuit Judge




      1
       Although Cole-Jackson seems to generally assert that his fifteen-year
sentence is disproportionate to his crime of conviction, he never specifies what
makes his case an exception to the general rule that “a sentence within the limits
imposed by statute is neither excessive nor cruel and unusual under the Eighth
Amendment.” United States v. Delacruz-Soto, 414 F.3d 1158, 1168 (10th Cir.
2005). In any event, such an argument would border on the frivolous, given Cole-
Jackson’s extensive criminal history. United States v. Garule, 461 F.3d 1238,
1247 (10th Cir. 2006) (holding that a legislature is justified in punishing a
recidivist more severely than it punishes a first offender). Furthermore, “the
basic purpose of § 924(c) is to combat the dangerous combination of drugs and
guns.” United States v. Angelos, 433 F.3d 738, 751 (10th Cir. 2006) (quotations
omitted). By bringing a loaded weapon to a drug transaction, Cole-Jackson
dramatically heightened the danger to society. Id. In light of the magnitude of
the potential harm, Cole-Jackson’s fifteen-year sentence is not grossly, or for that
matter remotely, disproportionate to the crime he committed. Id.

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