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

No. 02-1233
UNITED STATES   OF   AMERICA,
                                           Plaintiff-Appellee,
                              v.

CASEY BOCK,
                                        Defendant-Appellant.
                        ____________
          Appeal from the United States District Court
                for the Southern District of Illinois.
         No. 01-30081-DRH—David R. Herndon, Judge.
                        ____________
ARGUED SEPTEMBER 11, 2002—DECIDED NOVEMBER 14, 2002
                   ____________


 Before POSNER, EASTERBROOK, and EVANS, Circuit Judges.
  EVANS, Circuit Judge. Casey Bock, as his attorney
recognizes, is swimming upstream. But he is not alone. The
issue he raises is not one on which he can prevail in
this court, but it is one which has—in one form or an-
other—captured the interest of a divided Supreme Court.
   Bock was convicted of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). He was sen-
tenced, however, under 18 U.S.C. § 924(e)(1), which in-
creased his exposure because he had three previous convic-
tions for violent felonies. He claims his Fifth and Sixth
2                                               No. 02-1233

Amendment rights were violated because the allegation
that he had prior violent felony convictions was not pre-
sented to a grand jury, pled in the indictment, or the sub-
ject of a stipulation in connection with his guilty plea.
Attempting to thread his way through the obstacles
presented by prior case law, Bock concentrates his energies
on a claim that his prior convictions—for purposes of
substantially increasing his punishment—should have been
presented to the grand jury. The grand jury could then
decline to return an indictment—which Bock thinks it very
well might have done under the facts of his case, which he
sees as sympathetic.
  In March of 2001, as police officers were searching his
home, Bock told them that he had a .22 caliber pistol in his
dresser. The police seized the firearm but made no arrest.
Several months later a grand jury for the Southern District
of Illinois charged Bock with a single count of being a felon
in possession of a firearm. Bock entered into a plea agree-
ment under which he pled guilty to the indictment. The
plea agreement stated that the maximum term of imprison-
ment for violating § 922(g)(1) is 10 years. But the agree-
ment went on to say that the government reserved the right
to argue for an enhanced sentence under § 924(e)(1), which
carries a minimum sentence of 15 years for those with three
prior convictions for violent felonies. Bock had the magic
number of qualifying violent felony convictions, but they
occurred 15 years before the instant offense. The district
judge, concluding despite the hoary convictions that Bock
was an “armed career criminal,” sentenced him to 188
months imprisonment under § 924(e)(1).
  Bock contends that the issue of his prior convictions
should have been presented to the grand jury. Because his
prior convictions are so old, and because the firearm in-
volved was in a dresser in his home and is not the type of
weapon favored by drug dealers, he thinks the grand jury
No. 02-1233                                                 3

might very well have determined that § 924(e)(1)—because
it is a harsh measure—should not be charged.
  In addition to showing what might well be a rather ideal-
istic view of how a grand jury operates, this argument runs
headlong into Supreme Court precedent and our decisions
in United States v. Skidmore, 254 F.3d 635 (2001), and
United States v. Mitchell, 299 F.3d 632 (2002). In those
cases, we considered the same statutes and held that there
is no requirement to plead prior convictions in an indict-
ment even when those convictions increase a defendant’s
sentence. We cannot see how, with a straight face, we could
distinguish a claim that the charge should be presented to
a grand jury from a claim that the indictment must include
the charge.
  Bock acknowledges these impediments to his claim, but
he thinks the Supreme Court may reverse itself. In some
sense, this debate started in McMillan v. Pennsylvania, 477
U.S. 79 (1986), where the Court sustained a statute that
allowed a judge to find, by a preponderance of the evidence,
that a defendant possessed a firearm, thus increasing the
mandatory minimum penalty for his crime, though not
exceeding the statutory maximum. Statutory maximums
were considered in Almendarez-Torres v. United States, 523
U.S. 224 (1998), in which the Court considered 8 U.S.C.
§ 1326(a). That statute prohibits an alien, who once was
deported from the United States, from returning without
special permission. It carries a prison term of up to 2 years.
However, subsection (b)(2) of § 1326 authorizes a prison
term of up to 20 years if the original deportation was for the
commission of an aggravated felony. The latter provi-
sion, the Court determined by a vote of 5 to 4, was a pen-
alty provision, not an element of the crime, and for that
reason, there was no need to charge that factor in the
indictment. Four dissenters—Justices Scalia, Stevens,
Souter, and Ginsburg—thought that subsections (a) and (b)
state separate offenses, and thus under (b) the prior con-
4                                                No. 02-1233

viction was an element of the crime which must be charged.
Then, in Jones v. United States, 526 U.S. 227 (1999), the
Court considered the federal carjacking statute, 18 U.S.C.
§ 2119, and whether the reference to “serious bodily injury”
which raised the sentencing range was a sentencing factor
or whether it was an element of a separate crime. The
Court determined it was an element of a separate offense.
Justice Kennedy, joined by Chief Justice Rehnquist and
Justices O’Connor and Breyer, said it was a sentencing
factor.
  The debate continued in a case embraced by numerous
defendants, Apprendi v. New Jersey, 530 U.S. 466 (2000).
The Court said that “[o]ther than the fact of a prior convic-
tion, 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.” At 490. The
Court acknowledged that Almendarez-Torres might have
been incorrectly decided, but recidivism was not contested
in Apprendi, so the Court had no reason to reexamine the
issue. Justice Thomas, joined by Justice Scalia, concurred
in the judgment of the Court but argued that any factor
which increases the punishment to which a defendant is
exposed is an element of the crime, not a sentencing factor.
In contrast, again Justice O’Connor, joined by Chief Justice
Rehnquist, Justice Kennedy, and Justice Breyer, found the
Apprendi rule too broad and were of the view that, within
limits, a legislature is free to determine what facts are
elements of the crime and which are sentencing enhance-
ments, not subject to the requirements for notice, submis-
sion to a jury, and proof beyond a reasonable doubt.
   Finally, in Harris v. United States, 122 S. Ct. 2406 (2002),
the Court considered 18 U.S.C. § 924(c)(1)(A), which pro-
vides for a sentence of 5 years to life if a person commits a
drug trafficking crime or a crime of violence while using or
carrying a firearm. The sentence “shall” be at least 7 years
if the person brandishes the gun and 10 years if he dis-
No. 02-1233                                                   5

charges the gun, thus increasing the mandatory minimum
sentence. “Brandishing” was not alleged in Harris’s indict-
ment, but the judge found, as a sentencing factor, that he
had brandished the weapon. Harris contended that while
McMillan might permit “brandishing” to be a sentencing
factor, Apprendi did not, and McMillan should be over-
ruled. The Court disagreed, saying:
    Reaffirming McMillan and employing the approach
    outlined in that case, we conclude that the federal
    provision at issue, 18 U.S.C. § 924(c)(1)(A)(ii), is consti-
    tutional. Basing a 2-year increase in the defendant’s
    minimum sentence on a judicial finding of brandishing
    does not evade the requirements fo the Fifth and Sixth
    Amendments. Congress “simply took one factor that
    has always been considered by sentencing courts to
    bear on punishment . . . and dictated the precise weight
    to be given that factor.” McMillan, 477 U.S., at 89-90,
    106 S. Ct. 2411. That factor need not be alleged in the
    indictment, submitted to the jury, or proved beyond a
    reasonable doubt.
At 2420. Justice O’Connor and Justice Breyer separately
concurred in the decision, both emphasizing that Apprendi
may be too restrictive and that the Constitution allows
judges to apply sentencing factors which are not charged in
the indictment. Four dissenters—justices Thomas, Stevens,
Souter, and Ginsburg—expressed the view that when a
factor exposes a defendant to a greater punishment than he
otherwise would face, it is an element of the crime, and that
this principle applies to mandatory minimums as well as to
sentences exceeding the default statutory maximum.
  So clearly, Bock’s observation that there is disagreement
in this area is accurate. But we are not in a position to
determine that Almendarez-Torres will inevitably be—or
effectively has been—overruled. In fact, in Skidmore, we
said it was not.
6                                                No. 02-1233

   In short, the issue Bock raises, while effectively a settled
one, is one on which reasonable minds might disagree. It is
not out of the question that the issue might be reexamined
by the Supreme Court. But that is not for us to say, nor is
it for us today to predict which direction any reexamination
might take. The judgment of conviction is AFFIRMED.

A true Copy:
       Teste:

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




                   USCA-02-C-0072—11-14-02
