                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                              APR 30 2001
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                         No. 00-6343
 BILLY WADE KEY, also known as                        (D.C. No. 00-CR-75-C)
 B.W. Key, also known as Billy Wade                        (W.D.Okla.)
 Key, Jr., also known as Billy W. Key,
 also known as Billy Key,

          Defendant-Appellant.




                                ORDER AND JUDGMENT*


Before HENRY, BRISCOE and MURPHY, Circuit Judges.


      After examining the briefs and appellate record, this panel 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). The case is therefore

ordered submitted without oral argument.



      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      Billy Wade Key appeals his sentence imposed under the Armed Career Criminal

Act (ACCA), 18 U.S.C. § 924(e)(1), following his plea of guilty to knowingly

possessing a firearm in interstate commerce, in violation of 18 U.S.C. § 922(g)(1). We

affirm.

      On June 6, 2000, Key was indicted on one count of “knowingly possess[ing] a

firearm, that is a Charter Arms .38 caliber revolver . . . which was in and affecting

interstate commerce . . . in violation of Title 18 United States Code, Section 922(g)(1),

the penalty for which is found in Title 18, United States Code, Section 924(a)(2).” R.

Vol. I, Doc. 1 at 1-2. Key entered a plea of guilty on July 7, 2000. The government

filed a notice that it would seek imposition of a sentence under the enhanced penalty

provisions of the ACCA. Key filed his objections, arguing imposition of a sentence

under § 924(e)(1) would violate Apprendi v. New Jersey, 530 U.S. 466 (2000),

because he “was not charged with nor did he plead facts showing he had been

previously convicted of three or more violent or drug felonies.” R. Vol. I, Doc. 21 at

2. On September 28, 2000, the district court sentenced Key to a term of imprisonment

of 180 months.

      On appeal, Key contends, under Apprendi, the district court erred in sentencing

him under the ACCA to fifteen years in prison when the indictment charged him under

a statute that carried a maximum penalty of ten years. Key acknowledges this court's

recent decision in United States v. Dorris, 236 F.3d 582, 586-88 (10th Cir. 2000),

                                            2
expressly rejected the argument he makes here. In Dorris, we held that Apprendi failed

to overrule Almendarez-Torres v. United States, 523 U.S. 224 (1998), which held that

prior felony convictions are mere sentence enhancements and not elements of an

offense. Key states he brought this appeal to preserve the issue because he anticipates

Dorris will be overruled.

      AFFIRMED.

                                                Entered for the Court

                                                Mary Beck Briscoe
                                                Circuit Judge




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