                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                      August 17, 2009
                       UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                        Clerk of Court
                                        TENTH CIRCUIT


 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.                                                 No. 08-6246
                                                   (D. Ct. No. 5:08-CR-00064-HE-1)
 VERNON JEFFREY NOLAN,                                       (W.D. Okla.)

                Defendant - Appellant.


                               ORDER AND JUDGMENT*


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.


       After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in 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.

       Defendant-appellant Vernon Nolan pleaded guilty to being a felon in possession of

a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). Because of several prior

drug convictions, Mr. Nolan qualified as an “armed career criminal,” subject to a

minimum fifteen-year sentence. See id. § 924(e)(1). The district court sentenced Mr.


       *
        This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Nolan to the statutory minimum of fifteen years in prison, and Mr. Nolan appealed. We

have jurisdiction under 28 U.S.C. § 1291, and we AFFIRM.

                                   I. BACKGROUND

       In September 2007, police officers in Oklahoma City found Mr. Nolan in

possession of a nine-millimeter semi-automatic firearm and eight rounds of ammunition.

Because Mr. Nolan had prior felony convictions, his possession of the weapon and

ammunition violated 18 U.S.C. § 922(g)(1). Mr. Nolan admits to having possessed the

weapon, but he asserts that he had taken the weapon off of another man to prevent an

altercation.

       In the district court, Mr. Nolan pleaded guilty. He does not contest the

voluntariness of that plea. Prior to his arrest in this case, Mr. Nolan had four felony

convictions for possession with intent to distribute marijuana. Under the Armed Career

Criminal Act, a defendant who violates § 922(g)(1), and who has three prior convictions

for a “violent felony” or a “serious drug offense,” must be sentenced to a minimum of

fifteen years’ imprisonment. Id. § 924(e)(1). The statute defines a “serious drug

offense,” in pertinent part, as “an offense under State law, involving manufacturing,

distributing, or possessing with intent to manufacture or distribute, a controlled substance

. . . for which a maximum term of imprisonment of ten years or more is prescribed by

law.” Id. § 924(e)(2)(A)(ii). Mr. Nolan was convicted four times of possession with

intent to distribute marijuana under Okla. Stat. tit. 63, § 2-401. The maximum penalty for




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that offense is life imprisonment. Id. § 2-401(B)(2).1 The district court therefore

determined that Mr. Nolan was an “armed career criminal,” subject to a statutory

minimum sentence of fifteen years.

       Before Mr. Nolan pleaded guilty, the court apprised him of his right to go to trial

and of the statutory minimum penalty. On appeal, Mr. Nolan challenges his sentence on

five grounds: the statutory minimum sentence violates the “separation of powers”

doctrine; the sentence violates his due process rights; the sentence violates the Eighth

Amendment; the sentence is greater than necessary to achieve the goals of sentencing;

and the sentence violates Mr. Nolan’s Second Amendment right to bear arms.

                                     II. DISCUSSION

       This court reviews de novo the application of the Armed Career Criminal Act in

sentencing. See United States v. Gonzales, 558 F.3d 1193, 1196 (10th Cir. 2009). We

conclude that none of Mr. Nolan’s arguments attacking the district court’s sentence have

merit. We will briefly address each of his arguments.

A.     Separation of Powers

       A federal court does not violate the “separation of powers” doctrine by

implementing a mandatory sentence imposed by Congress. Mr. Nolan argues that

mandatory sentences give sentencing power to Congress that constitutionally belongs

       1
         Section 2-401(B)(2) applies to drugs that do not fall within § 2-401(B)(1) and are
within “Schedule I, II, III, or IV.” Marijuana is a “Schedule I” drug. Id. § 2-204(C)(12).
Section 2-401(B)(2) imposes a minimum sentence of two years and a maximum sentence
of life in prison for possession of a controlled dangerous substance with intent to
distribute. Id. § 2-401(B)(2); § 2-401(A)(1).

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with the judiciary. The Supreme Court, however, has held that “Congress has the power

to define criminal punishments without giving the courts any sentencing discretion.”

Chapman v. United States, 500 U.S. 453, 467 (1991). This court also has recognized that

a mandatory sentence does not violate the separation of powers. See United States v.

Gurule, 461 F.3d 1238, 1246 (10th Cir. 2006) (“Congress has the power . . . to determine

punishments, and in the exercise of that power Congress may choose to give the judicial

branch no sentencing discretion whatsoever.”). Thus, Mr. Nolan’s argument is foreclosed

by precedent. The court’s application of the mandatory fifteen-year sentence prescribed

by Congress did not violate the “separation of powers” doctrine.

B.     Due Process

       Mandatory sentences also do not violate a defendant’s right to due process. Mr.

Nolan argues that mandatory minimum sentences prevent courts from undergoing an

“individualized sentencing analysis.” The absence of such an analysis, he argues, violates

a defendant’s Fifth Amendment right to due process. Again, our precedent defeats his

argument. There is no “due process right to a discretionary, individualized sentence in a

noncapital case.” United States v. Horn, 946 F.2d 738, 746 (10th Cir. 1991). See also

United States v. Thomas, 884 F.2d 540, 543 (10th Cir. 1989) (“Congress has the power to

completely divest the courts of their sentencing discretion and to establish exact,

mandatory sentences for all offenses . . . .”). As Mr. Nolan is not charged with a capital

crime, the imposition of a mandatory sentence does not violate his right to due process.

C.     The Eighth Amendment

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       The application of the mandatory minimum sentence in this case does not violate

the Eighth Amendment’s prohibition on “cruel and unusual punishments.” U.S. Const.

amend. VIII. Mr. Nolan argues that the circumstances surrounding his firearm

conviction, and the fact that his prior convictions involved “relatively small” quantities of

marijuana, make his sentence “grossly disproportionate” to the punishment. To survive

an Eighth Amendment challenge, a sentence “must be proportionate to the crime for

which the defendant has been convicted.” Solem v. Helm, 463 U.S. 277, 290 (1983). Our

analysis focuses on “(i) the gravity of the offense and the harshness of the penalty; (ii) the

sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences

imposed for commission of the same crime in other jurisdictions.” Id. at 292. The Court

later clarified that a “gross disproportionality principle” applies to “sentences for terms of

years.” Lockyer v. Andrade, 538 U.S. 63, 72 (2003). That principle “reserves a

constitutional violation for only the extraordinary case.” Id. at 77. This court has stated

that “[i]f a sentence imposed is within the prescribed statutory limits, the appellate court

generally will not regard it as cruel and unusual punishment.” United States v. Gourley,

835 F.2d 249, 253 (10th Cir. 1987).

       Not only was Mr. Nolan’s sentence within the statutory limits, but the district court

gave him the shortest sentence allowed under law. The second and third factors in the

Helm analysis clearly favor upholding the sentence, because no offender in Mr. Nolan’s

jurisdiction or elsewhere could receive a lighter sentence following the same convictions.

Mr. Nolan’s case is not an “extraordinary case,” and thus, under Lockyer, the sentence

                                             -5-
does not violate the Eighth Amendment.

D.     Achieving the Purposes of Sentencing

       Mr. Nolan’s sentence was not greater than necessary to achieve the purposes of

sentencing. Mr. Nolan argues that the sentence was greater than necessary because he

only possessed the firearm momentarily, and because his previous offenses were “minor

marijuana offenses.”2 Mr. Nolan’s arguments fail.

       First, there is no element of time required to establish possession of a firearm

within 18 U.S.C. § 922(g)(1). That Mr. Nolan may have possessed the firearm briefly

does not make him less guilty of the charged offense—to which he pleaded guilty. In

addition, Mr. Nolan had pleaded guilty four times to possession with intent to distribute

marijuana. Congress has determined that a person who has been convicted of that offense

at least three times, and who then possesses a firearm, should be sentenced to at least

fifteen years in prison, regardless of any mitigating circumstances. Congress is entitled to

make that judgment, and because of 18 U.S.C. § 924(e)(1), this court has no discretion to

reduce Mr. Nolan’s sentence based on the circumstances of his predicate crimes.

E.     The Second Amendment

       The Second Amendment does not provide a shield for Mr. Nolan’s conduct. Mr.


       2
        Mr. Nolan cites no legal basis for such an argument, but he appears to be reciting
the language of 18 U.S.C. § 3553(a), which provides the basis for sentence variances.
That section instructs the court to “impose a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth in paragraph (2) of this subsection.” 18
U.S.C. § 3553(a). Paragraph (2) then describes four purposes of sentencing. See id. §
3553(a)(2).

                                             -6-
Nolan cites the Supreme Court’s decision in District of Columbia v. Heller, – U.S. –, 128

S. Ct. 2783 (2008), in asserting that his Second Amendment rights were violated. While

Heller did acknowledge a Second Amendment right to individual gun ownership, see id.

at 2799, the Court limited that right. Specifically, the Court wrote, “nothing in our

opinion should be taken to cast doubt on longstanding prohibitions on the possession of

firearms by felons and the mentally ill . . . .” Id. at 2816–17. Mr. Nolan was a convicted

felon when he possessed the firearm in question. Thus, the Court specifically foreclosed

his argument that his possession of the firearm was protected by the Second Amendment.

                                   III. CONCLUSION

       For the foregoing reasons, we AFFIRM Mr. Nolan’s sentence.

                                          ENTERED FOR THE COURT,



                                          Deanell Reece Tacha
                                          Circuit Judge




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