                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0873n.06

                                           No. 13-5133
                                                                                        FILED
                          UNITED STATES COURT OF APPEALS                           Oct 07, 2013
                               FOR THE SIXTH CIRCUIT                          DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,                           )
                                                    )
       Plaintiff-Appellee,                          )       ON APPEAL FROM THE
                                                    )       UNITED STATES DISTRICT
v.                                                  )       COURT FOR THE WESTERN
                                                    )       DISTRICT OF TENNESSEE
KEITH KEGLAR,                                       )
                                                    )
       Defendant-Appellant.                         )
                                                    )




       BEFORE: BOGGS, CLAY, and GILMAN, Circuit Judges.


       PER CURIAM. Keith Keglar appeals his sentence under the Armed Career Criminal Act

(ACCA), 18 U.S.C. § 924(e). We affirm.

       A jury convicted Keglar of possession of a firearm by a felon, in violation of 18 U.S.C.

§ 922(g)(1). Prior to sentencing, Keglar objected to his classification as an armed career criminal,

asserting in relevant part that a violation of the ACCA is a separate criminal offense and that,

pursuant to the Due Process Clause, the predicate felony convictions must be included in the

indictment and proven beyond a reasonable doubt. Concluding that the Supreme Court’s and this

court’s precedent foreclosed Keglar’s objection, the district court sentenced Keglar as an armed

career criminal to 235 months of imprisonment.
No. 13-5133
United States v. Keglar

       We review de novo Keglar’s constitutional challenge to his sentence. See United States v.

Anderson, 695 F.3d 390, 398 (6th Cir. 2012). As the district court pointed out, this court has already

“rejected the argument that the ACCA sentencing provision is a separate offense and that the

government must plead in the indictment and prove beyond a reasonable doubt the predicate

felonies.” United States v. McMurray, 653 F.3d 367, 370 (6th Cir. 2011) (collecting cases holding

that the ACCA is a sentence enhancement that does not need to be included in the indictment or

proved beyond a reasonable doubt); see also Anderson, 695 F.3d at 398.

       Keglar acknowledges that, under Almendarez-Torres v. United States, 523 U.S. 224 (1998),

“a judge is permitted to find, based on the preponderance of the evidence, the fact of a prior

conviction,” United States v. Martin, 526 F.3d 926, 941 (6th Cir. 2008), but contends that the

Supreme Court’s recent decision in Alleyne v. United States, 133 S. Ct. 2151 (2013), supports his

argument that his prior convictions should have been alleged in the indictment and found as facts

by the jury at trial. In Alleyne, the Supreme Court held that “any fact that increases the mandatory

minimum is an ‘element’ that must be submitted to the jury.” 133 S. Ct. at 2155. But the Supreme

Court specifically declined to disturb the narrow exception for the fact of a prior conviction

established by Almendarez-Torres: “Because the parties do not contest that decision’s vitality, we

do not revisit it for purposes of our decision today.” Id. at 2160 n.1.

       For the foregoing reasons, we affirm Keglar’s sentence.




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