          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                    FILED
                                                                   October 2, 2007

                                No. 07-40091                 Charles R. Fulbruge III
                              Summary Calendar                       Clerk


UNITED STATES OF AMERICA

                                            Plaintiff - Appellee
v.

CHRISTOPHER HELM

                                            Defendant - Appellant



                 Appeal from the United States District Court
                      for the Southern District of Texas


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:
         Christopher Helm (“Helm”) appeals the 180-month sentence imposed
following his conviction of one charge of being a convicted felon in possession of
a firearm under 18 U.S.C. § 922(g). Helm argues that the district court erred in
sentencing him as an armed career criminal under the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924. Helm also argues that § 924(e) of the ACCA
violates the due process clause, and that his sentence infringes on his Eighth
Amendment rights. Finding no error, we affirm the judgment of the district
court.


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                                      No. 07-40091

       Christopher Helm was indicted on one charge of being a convicted felon in
possession of a firearm. 18 U.S.C. § 922(g). The charge against Helm arose after
officers were summoned to a hotel to investigate complaints of attempted
burglary. The officers discovered Helm and found that he had a firearm on his
person.
       During arraignment, the government put Helm on notice that he was
potentially subject to a sentencing enhancement under the ACCA based on his
status as an armed career criminal. 18 U.S.C. § 924(e). Helm pleaded guilty to
the charge against him. The district court found that Helm had the necessary
prior convictions to justify his treatment as an armed career criminal under the
ACCA and sentenced him to the 180-month statutory minimum.
                                             II
       We review a district court's interpretation and application of a sentence
enhancement provision de novo.1 United States v. Montgomery, 402 F.3d 482,
485 (5th Cir. 2005). Helm raises due process and Eighth Amendment arguments
related to his sentence for the first time in this appeal. Therefore, as related to
those arguments, we review Helm’s sentence only for plain error. See United
States v. Jones, 489 F.3d 679, 681 (5th Cir. 2007) (recognizing that errors not
preserved at trial level are to be reviewed for plain error). Under the plain error
framework, Helm must show that (1) there was legal error, (2) the error was
plain, (3) the error affected his substantial rights, and (4) the error seriously
affected the fairness, integrity or public reputation of judicial proceedings. Id.


                                            III


       1
        The government contends that Helm raises this error for the first time on appeal, and
thus that this issue should be reviewed for plain error. However, Helm raised an objection
during his sentencing hearing to his being treated as an armed career criminal under the
ACCA despite the fact that he admitted that the statute, based on its text, appears to apply
to him. Therefore we treat his objection as preserved and review it accordingly.

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                                  No. 07-40091

                                        A
      The ACCA imposes a mandatory fifteen-year sentence on a felon who has
been convicted of the unlawful possession of a firearm, and who has three
previous convictions for a “violent felony” or a “serious drug offense.” 18 U.S.C.
§ 924(e). In the instant case, Helm's sentence was enhanced due to three prior
convictions, all burglary offenses. As admitted by Helm at sentencing, each of
these convictions qualifies as a “violent felony” for the purposes of the ACCA.
While Helm admits that he falls under the letter of § 924(e), he argues that he
should not be treated as an armed career criminal under the ACCA because his
felonies were committed when he was 18 years old, and because at the time of
sentencing he claimed to be an addict of methamphetamine. Specifically, Helm
argues that Congress did not intend § 924(e) to target criminals in Helm’s
situation, presumably those with older qualifying convictions and current drug
addictions, even if they meet the statute’s requirements. Neither the statute nor
any caselaw suggest that the age of a qualifying conviction impacts the
application of the ACCA. In arguing that he falls outside the purposes of the
statute, Helm relies exclusively on a district court case from Minnesota, United
States v. Weber, 132 F. Supp. 2d 1202 (D. Minn. 2001). However, Weber provides
no relief for Helm. In Weber the court determined that the ACCA should not
apply to Weber because two burglaries committed on the same day were deemed
one offense, and therefore Weber did not meet the ACCA’s three-conviction
requirement to qualify as an armed career criminal. Id. at 1204. Weber does not
suggest that an offender who meets the ACCA’s requirements might somehow
avoid its mandatory minimum sentence. Because Helm provides no reason to
deviate from the statute’s text, the statute applies to Helm as clearly written.
The district court did not err in determining that the ACCA applies to Helm.


                                        B

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                                  No. 07-40091

      Helm argues on appeal that the application of § 924(e) violates the due
process clause because the statute enhances his punishment based on facts (i.e.,
the existence of his convictions) that were not submitted to a jury nor proved
beyond a reasonable doubt. Helm’s argument fails to meet the first step of plain
error review, a showing of error. Helm recognizes that his due process argument
is foreclosed by circuit precedent but raises it to preserve possible review by the
Supreme Court. We have recognized that § 924(e) operates as a sentencing
enhancement. As such, we have held that the existence of prior convictions need
not be found by a jury. See United States v. White, 465 F.3d 250, 254 (5th Cir.
2006); United States v. Affleck, 861 F.2d 97, 99 (5th Cir. 1988). Our prior
holdings control in this case. The district court did not err in sentencing Helm
as it did.
                                        C
      Finally, Helm argues that his sentence under the ACCA violates the
Eighth Amendment because it amounts to cruel and unusual punishment. Here
again, Helm fails to show any legal error in the district court’s sentence. Helm
argues that the application of § 924(e) to him amounts to a punishment grossly
disproportionate to the crime committed. In Harmelin v. Michigan, the Supreme
Court upheld a mandatory life sentence without the possibility of parole for one
drug conviction in the face of an Eighth Amendment challenge. 501 U.S. 957
(1991). There the Court recognized that "[s]evere, mandatory penalties may be
cruel, but they are not unusual in the constitutional sense, having been
employed in various forms throughout our Nation's history." Id. at 994-95. We
have upheld the federal “three strikes” law, 18 U.S.C. § 3559(c), against an
Eighth Amendment proportionality challenge. United States v. Martin, 431 F.3d
846, 853 (5th Cir. 2005). Helm’s is not a life sentence, and his enhancement is
based on his involvement in a series of “violent felonies.” In comparison to
Martin and Harmelin, it is clear that the application of the ACCA to Helm does

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not violate the Eighth Amendment. In so holding, we join the other circuits that
have considered an Eighth Amendment challenge to the ACCA. See, e.g., United
States v. Reynolds, 215 F.3d 1210, 1214 (11th Cir. 2000 (upholding ACCA
against Eighth Amendment challenge); United States v. Cardoza, 129 F.3d 6, 18
(1st Cir.1997) (same) ; United States v. Rudolph, 970 F.2d 467, 469-70 (8th Cir.
1992) (same); United States v. Crittendon, 883 F.2d 326, 331 (4th Cir. 1989)
(same); United States v. Pedigo, 879 F.2d 1315, 1320 (6th Cir.1989) (same);
United States v. Dombrowski, 877 F.2d 520, 526 (7th Cir.1989) (same); United
States v. Baker, 850 F.2d 1365, 1372 (9th Cir. 1988) (same).
                                      IV
      For the foregoing reasons we AFFIRM the sentence of the district court.




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