                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 00-3624
                                   ___________

United States of America,               *
                                        *
               Appellee,                *
                                        *    Appeal from the United States
      v.                                *    District Court for the Eastern
                                        *    District of Arkansas.
Larry Davis,                            *
                                        *
               Appellant.               *
                                   ___________

                             Submitted: May 17, 2001

                                  Filed: August 15, 2001
                                   ___________

Before BOWMAN and BEAM, Circuit Judges, and KYLE,1 District Judge.
                           ___________

BEAM, Circuit Judge.

      Appellant, Larry Davis, was convicted in district court2 of attempted armed bank
robbery (18 U.S.C. § 2113(a) and (d)), use of a firearm in a crime of violence (18

      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota, sitting by designation.
      2
        The Honorable George Howard, Jr., United States District Judge for the Eastern
District of Arkansas.
U.S.C. § 924(c)(1)) and being a felon in possession of a firearm (18 U.S.C. §
922(g)(1) and 924(a)(2)). Under a conviction for these crimes, the statutory maximum
sentence is twenty-five years. However, appellant was sentenced to life in prison as
a repeat offender pursuant to 18 U.S.C. § 3559. Appellant challenges his sentence and
conviction on several grounds. We affirm.

I.    BACKGROUND

      We review the facts in the light most favorable to the jury verdict. United States
v. Davis, 103 F.3d 660, 664 (8th Cir. 1996).

       On February 19, 1999, appellant entered a branch of Regions Bank in Little
Rock, Arkansas, with a gun and demanded money from a teller. The bank guard
grabbed appellant's gun and a brief struggle ensued, during which the gun apparently
opened and bullets fell on the floor. After regaining control of the gun, the appellant
pointed it at the guard and dry fired it (the chamber now being empty). With his plans
foiled, the appellant left the bank.

        Immediately before the robbery attempt, a would-be customer had driven up to
the bank but decided not to go in because he saw the appellant enter the bank in a
suspicious manner (i.e., wearing a hooded sweatshirt with the hood pulled tight around
his forehead and chin concealing his face). Shortly thereafter, the customer saw the
appellant exit the bank with a gun and attempt his getaway on foot. The customer
immediately called 911 and began following the appellant in his car. The customer
followed the appellant for several blocks, constantly relaying his location to authorities.
There were no other pedestrians on the street. During this low-speed chase, the caller
observed the appellant remove his sweatshirt, bundle it with other clothes, and discard
it in a ditch. The caller lost sight of the appellant for a few seconds several times as he
rounded corners, and perhaps for up to fifteen seconds when the appellant finally
stopped and the caller had to drive past in order to avoid suspicion. Immediately after

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passing the suspect and turning the corner, the caller encountered the police and
directed them to the appellant. He then turned around and went to where the police had
apprehended the appellant.

        The caller confirmed–based on clothing, general physical build, and physical
location–that the police had apprehended the person he had been following. The caller
freely admitted to the police, and before the jury at trial, that he never got a good look
at the face of the person whom he followed from the bank and that he could not make
an identification based on facial features at the scene or later when presented with a
photo line-up. Rather, he based his identification of the appellant on the fact that he
followed the appellant from the bank to the point where the police apprehended him
while keeping nearly constant visual contact on otherwise empty streets in broad
daylight. The caller also admitted under cross-examination that although there were
no other pedestrians on the street, it was conceivable that when he briefly lost sight of
the suspect the suspect could have hidden, and that another person of the same general
build, wearing similar clothes could have been walking in the place where the caller
expected to find the suspect, however unlikely that scenario might be.

      A jury convicted the appellant on all counts. Because appellant had two prior
robbery convictions, he received a mandatory life sentence under 18 U.S.C. § 3559.

II.   ANALYSIS

       Appellant's conviction under 18 U.S.C. § 2113 for attempted robbery carries a
statutory maximum of twenty-five years. However, appellant received a life sentence
according to the provisions of 18 U.S.C. § 3559, which requires a mandatory life
sentence if a person is convicted of a serious violent felony–such as robbery–after
having previously been convicted of two or more serious violent felonies. 18 U.S.C.
§ 3559(c). Under that statute, once the prosecution establishes that a defendant has
previously been convicted of two or more violent felonies, the burden shifts to the

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defendant to prove the convictions were nonqualifying felonies, which cannot serve as
a basis for imposing the mandatory life sentence. 18 U.S.C. § 3559(c)(3). To establish
a robbery conviction as nonqualifying, a defendant must prove that no dangerous
weapon, or threat of a dangerous weapon, was involved in the offense, and the offense
did not result in death or serious injury. 18 U.S.C. § 3559(c)(3)(A).

       Appellant makes two due process arguments to challenge his sentence: (1) due
process demands that the question of whether his past robbery convictions are
qualifying or nonqualifying felonies under section 3559 must be submitted to the jury
to be proved beyond a reasonable doubt; and (2) even if the issue need not be
submitted to the jury, due process prohibits shifting the burden of proof to a defendant
to prove his prior convictions are nonqualifying. We reject both claims.

      The Supreme Court has held it is not necessary to submit the fact of a prior
conviction to the jury as an element of the crime to be proved beyond a reasonable
doubt. Almendarez-Torres v. United States, 523 U.S. 224, 235, 247 (1998) (refusing
to interpret a statute to make the fact of a previous conviction an element, and thus a
fact question for the jury, in part because the introduction of evidence of a defendant's
prior crimes risks significant prejudice to the defendant); see also Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000) (stating that any fact, other than the fact of a prior
conviction, that increases a defendant's sentence beyond the statutory maximum
authorized by the jury verdict must be submitted to the jury and proved beyond a
reasonable doubt). Under this rule, a fact of prior conviction includes not only the fact
that a prior conviction exists, but also a determination of whether a conviction is one
of the enumerated types qualifying for the sentence enhancement under section 3559.
See, e.g., United States v. Gatewood, 230 F.3d 186, 192 (6th Cir. 2000) (en banc).

      Although in Apprendi the Court noted that it was "arguable that Almendarez-
Torres was incorrectly decided, and that a logical application of our reasoning today
should apply if the recidivist issue were contested," it explicitly refused to overrule that

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decision because the question of prior convictions was not before the Court. 530 U.S.
at 489-90. A close examination of Supreme Court cases casts further doubt on the
future viability of Almendarez-Torres. See Apprendi, 530 U.S. at 520-21 (Thomas, J.,
concurring) (noting that the fact of prior conviction is an element of the offense under
a recidivism statute, contrary to the rule stated in Almendarez-Torres); Almendarez-
Torres, 523 U.S. at 248 (Scalia, J., with whom Stevens, Souter and Ginsburg, JJ.,
joined dissenting) (stating that the issue of recidivism should be treated as an element
of the offense); see also Gatewood, 230 F.3d at 192 (en banc) (questioning the viability
of Almendarez-Torres). It is our role to apply Supreme Court precedent as it stands,
and not as it may develop. Under Apprendi and Alemndarez-Torres, it was proper for
the district court to make the finding according to a preponderance of the evidence that
appellant had two prior convictions for serious violent felonies.

       This still leaves the question of the burden shifting contained in section 3559.
The structure of section 3559, which classifies all robberies as serious violent felonies
but allows a defendant to prove the prior robbery convictions are nonqualifying by
proving certain facts, creates an affirmative defense to the sentence enhancement. See
Gatewood, 230 F.3d at 188; United States v. Kaluna, 192 F.3d 1188, 1195 (9th Cir.
1999) (en banc). Although due process places some limits on how the state defines the
elements of a crime and distributes the burden of proof, it does not require the state to
"prove beyond a reasonable doubt every fact, the existence or nonexistence of which
it is willing to recognize as an exculpatory or mitigating circumstance affecting the
degree of culpability or the severity of the punishment." Patterson v. New York, 432
U.S. 197, 207 (1977). Other circuits that have considered the propriety of this burden-
shifting provision in section 3559 have all held that under Patterson, Congress has the
power to place on a defendant the burden of establishing an affirmative defense that is
not an essential element of the crime. Gatewood, 230 F.3d at 189; United States v.
Ferguson, 211 F.3d 878, 887 (5th Cir. 2000); United States v. Smith, 208 F.3d 1187,
1190 (10th Cir. 2000); Kaluna, 192 F.3d at 1195; United States v. Wicks, 132 F.3d


                                          -5-
383, 389 (7th Cir. 1997). We agree with the reasoning of these circuits and see no
reason to repeat it here.3

       Appellant next argues that the district court erred in excluding the testimony of
an expert witness who would have offered opinions about the limited reliability of
eyewitness testimony. We only reverse the decision to exclude expert testimony for
abuse of discretion. United States v. Kime, 99 F.3d 870, 883 (8th Cir. 1996). We are
"especially hesitant to find an abuse of discretion unless the government's case against
the defendant rested exclusively on uncorroborated eyewitness testimony." United
States v. Blade, 811 F.2d 461, 465 (8th Cir. 1987).

       Here, the expert testimony generally would have concerned the psychological
processes of encoding and recalling a memory, and how such processes affect a
witness' accuracy when he observes an unfamiliar person and later attempts to pick that
same person out of a line-up or group of photographs. This is not relevant to the
testimony of the 911 caller. The caller's identification of the appellant at the time of
arrest did not rely on attempting to recall an unfamiliar face, but rather it relied on the
almost constant observation of the appellant on empty streets from the bank to the point
of arrest. Excluding the expert testimony in relation to the 911 caller was not an abuse
of discretion. Even if the court erred by excluding the expert testimony regarding the
bank guard's identification of the appellant in a photo line-up, such error was harmless
in light of the overwhelming independent evidence linking the appellant to the crime.
 United States v. Marrowbone, 211 F.3d 452, 455 (8th Cir. 2000) (stating that if, after
reviewing the record, we determine that an erroneous evidentiary ruling did not
influence the jury verdict, then such a ruling did not affect a substantial right of the
defendant and is harmless error).


      3
        Of course, the analysis concerning the burden-shifting would change
considerably if the fact of prior conviction were viewed as an element of the crime
rather than a sentencing enhancement.

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       Appellant also argues that the government violated the Speedy Trial Act, that the
government presented insufficient evidence at trial to prove the bank was FDIC insured
(and thus covered by the federal bank robbery statute), and that the trial court
committed clear error in denying his motion for mistrial because the testimony of two
government witnesses concerning appellant's clothes was improperly given before the
jury (although the error was immediately cured when the district court struck the
testimony from the record and instructed the jury to disregard it). Appellant has also
argued, in a pro se brief, that the federal courts lack jurisdiction over his criminal
prosecution. We have reviewed all of these claims and find them to be without merit.

III.   CONCLUSION

       Accordingly, we affirm.

       A true copy.

             Attest:

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




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