                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 03-3657
UNITED STATES     OF   AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

DAVID L. HENTON,
                                            Defendant-Appellant.

                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
            No. 03 CR 289-1—Milton I. Shadur, Judge.
                          ____________
     ARGUED APRIL 21, 2004—DECIDED JUNE 29, 2004
                    ____________



  Before COFFEY, MANION, and KANNE, Circuit Judges.
  PER CURIAM. Pursuant to a plea agreement, David
Henton pleaded guilty to violating 18 U.S.C. § 922(g), which
makes it a crime to possess a firearm after being convicted
of a felony. Because Henton had three prior state drug
convictions, the district court sentenced him to the manda-
tory minimum of fifteen years’ imprisonment under the
Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”).
Henton appeals, arguing that his recidivism should have
been charged in the indictment and proven beyond a
reasonable doubt and that the district court erred when it
2                                                No. 03-3657

determined that his 1993 state drug conviction qualified as
a “serious drug offense” under ACCA. We affirm.


                      I. Background
  Henton’s conviction stems from a June 2002 incident in
which Chicago police officers saw him holding a handgun.
When the officers confronted Henton, he admitted he had a
weapon and placed it on the ground. The officers deter-
mined that Henton had been carrying a fully-loaded 9-mil-
limeter semi-automatic pistol. At the time of his arrest,
Henton had a prior felony conviction, and in July 2002 he
pleaded guilty to being a felon in possession of a firearm.
  At sentencing, the parties disputed whether Henton had
three prior “serious drug offenses” under ACCA (defined as
offenses “for which a maximum term of ten years or more is
prescribed by law”), which mandates a 15-year minimum
sentence. Henton admitted that his two 1991 Illinois con-
victions for possession of cocaine with intent to deliver were
“serious,” but he disputed his 1993 conviction. In the 1993
case, Henton had been arrested for possessing less than one
gram of cocaine with the intent to deliver. The state court
judge had sentenced Henton to four years of imprisonment,
noting that his crime was “punishable by three to seven
years in the penitentiary, seven to 14 on extended term.” In
the district court Henton argued that this conviction was
not a “serious drug offense” under ACCA because, although
he had admittedly been eligible for an “extended term” as
a repeat offender, the state court judge had not given
Henton “due notice” that his sentence was being enhanced
under the extended-term provision. He also argued that,
because the state statute provided only that a recidivist’s
sentence “may be enhanced,” it did not mandate a sentence
of more than ten years and therefore did not constitute a
“serious drug offense.”
No. 03-3657                                                 3

  The district court rejected Henton’s arguments, holding
that his 1993 conviction qualified as a serious drug offense
under ACCA. The court stated that the sentence Henton
actually received was irrelevant:
    If something could carry a sentence of ten years, even
    though the court may give you time served for two days,
    it’s still considered a qualifying offense. That’s the way
    the law reads. So it’s not what you actually got, it’s
    what the law could have provided if the court had hit
    you hardest of all right up at the top . . . . it’s only
    because it gets an extended term, [not because] of that
    offense alone, but because at that time you had a prior
    felony record.
The court reasoned that the Illinois statute at issue unam-
biguously provided that possession of a controlled substance
could be punished by seven to fourteen years’ imprisonment
if the defendant had previously been convicted for con-
trolled substances violations. The district court ruled that
Henton’s drug conviction that pre-dated the 1993 conviction
made him eligible for more than ten years’ imprisonment
for the 1993 conviction. Thus, the district court concluded
that Henton’s 1993 conviction could be counted as a “serious
drug offense.”


                       II. Analysis
A. Designation of 1993 Conviction as “Serious
   Drug Offense”
  Henton argues that the district court erred in deter-
mining that his 1993 Illinois conviction for possessing less
than one gram of cocaine constituted a “serious drug of-
fense” under ACCA. He claims that his crime was not one
for which more than ten years of imprisonment is autho-
rized, because the non-extended term under the Illinois
statute can be no more than seven years, and “[a]t no time
4                                               No. 03-3657

[did] the Court, or anyone else, tell [him] that the state
[had] extended the term” to the seven-to-fourteen-year
range.
  Under the Armed Career Criminal Act, a defendant who
has been found guilty of possessing a weapon after commit-
ting a felony must be sentenced to a minimum term of 15
years’ imprisonment if he has previously been convicted of
three “serious drug offenses.” 18 U.S.C. § 924(e)(1). ACCA
defines a “serious drug offense” as “an offense under State
law, involving the manufacturing, distributing, or possess-
ing with intent to manufacture or distribute, a controlled
substance . . . , for which a maximum term of imprisonment
of ten years is prescribed by law.” Id. Whether a crime
counts toward designating a defendant as an armed career
criminal under ACCA is a question of law, which we review
de novo. United States v. Gillaum, 355 F.3d 982, 993 (7th
Cir. 2004).
  In this case, the statute that led to Henton’s 1993 convic-
tion provides that possession of less than a gram of cocaine
with the intent to deliver is a Class 2 felony, punishable by
three to seven years’ imprisonment. Ill. Rev. Stat., Ch. 56
½, ¶ 1401(d). The statute also provides, however, that “any
person convicted of a second or subsequent offense under
this act may be sentenced to imprisonment for a term up to
twice the maximum term otherwise authorized.” Id. ¶
1408(a). Henton concedes that he had a previous Illinois
drug conviction at the time of his 1993 conviction, so he was
eligible for up to fourteen years’ imprisonment. Although
Henton argues that the state’s failure to expressly invoke
the extended-term provision of the statute meant that he
was not subject to it, the statute does not contain any
prerequisites, other than recidivism, to qualify for the
extended term. Cf. United States v. Williams, 326 F.3d 535,
539-40 (4th Cir. 2003) (state drug statute required that
prosecutor make an “application” for the extended term and
establish defendant’s prior crime by a preponderance of the
No. 03-3657                                                 5

evidence). More importantly, it is irrelevant under ACCA
whether Henton actually received an extended sentence on
his 1993 conviction; what matters is the sentence that the
state statute made possible. Taylor v. United States, 495
U.S. 575, 600 (1990) (district courts should look “only to the
statutory definitions of the prior offenses, and not to the
particular facts underlying these convictions”); United
States v. Coleman, 158 F.3d 199, 203-04 (4th Cir. 1998) (fact
that defendant received only a six-month sentence not
relevant to whether crime counted under ACCA). Because
Henton was eligible for up to fourteen years’ imprisonment,
the district court properly concluded that the 1993 convic-
tion qualifies as a “serious drug offense” under ACCA.


B. Proof of Recidivism and Apprendi
  Henton also asserts that his conviction violates Apprendi
v. New Jersey, 530 U.S. 466 (2000). He states that “when
the existence of three prior violent (or drug) crimes in-
creases the statutory (USSG) maximum punishment under
§ 924, then, notwithstanding their characterization as ‘sen-
tencing factors,’ they must be treated as offense elements in
the Federal proceeding.”
  Henton is correct that, generally, “any fact that increases
the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond
a reasonable doubt.” Apprendi, 530 U.S. at 490. But
although 18 U.S.C. § 924(e) operates to increase the statu-
tory maximum for Henton’s crime from ten years to life, the
Supreme Court has excluded increases beyond the statutory
maximum for recidivism from the Apprendi rule, holding
that “the fact of a prior conviction” need not be charged in
the indictment and proven to the jury. Id.; see also
Almendarez-Torres v. United States, 523 U.S. 224, 239
(1998) (holding, prior to Apprendi, that recidivism is a
sentencing factor and not an element of the crime). Ac-
6                                             No. 03-3657

cordingly, this court has repeatedly rejected the assertion
that district courts should treat prior convictions used to
enhance a defendant’s penalty under ACCA as elements of
the offense. United States v. Hendricks, 319 F.3d 993, 1008
(7th Cir. 2003); United States v. Morris, 293 F.3d 1010,
1013 (7th Cir. 2002); United States v. Skidmore, 254 F.3d
635, 642 (7th Cir. 2001). Henton’s sentence did not violate
Apprendi.


                    III. Conclusion
  For the foregoing reasons, the decision of the district
court is AFFIRMED.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                  USCA-02-C-0072—6-29-04
