                              RECOMMENDED FOR FULL-TEXT PUBLICATION
                                  Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                           File Name: 14a0160p.06

                      UNITED STATES COURT OF APPEALS
                                      FOR THE SIXTH CIRCUIT
                                        _________________


 UNITED STATES OF AMERICA,                                     ┐
                                       Plaintiff-Appellee,     │
                                                               │
                                                               │        No. 13-4151
            v.                                                 │
                                                               >
                                                               │
 JAY J. NAGY,                                                  │
                                    Defendant-Appellant.       │
                                                               ┘
                            Appeal from the United States District Court
                             for the Northern District of Ohio at Akron.
                        No. 5:13-cr-00138-1—James S. Gwin, District Judge.
                                   Decided and Filed: July 24, 2014

                    Before: COLE, ROGERS, and ALARCÓN, Circuit Judges.*

                                          _________________

                                               COUNSEL

ON BRIEF: Jeffrey B. Lazarus, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Cleveland, Ohio, Melissa M. Salinas, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Toledo, Ohio, for Appellant. Daniel R. Ranke, UNITED STATES ATTORNEY’S OFFICE,
Cleveland, Ohio, for Appellee.
                                  _________________

                                                OPINION
                                          _________________

        ROGERS, Circuit Judge. Jay J. Nagy appeals his mandatory minimum sentence of
fifteen years’ imprisonment for being a felon in possession of a firearm and ammunition, and for
knowingly possessing a stolen firearm.           Nagy argues that his sentence violates his Sixth

        *
         The Honorable Arthur L. Alarcón, Senior Circuit Judge for the United States Court of Appeals for the
Ninth Circuit, sitting by designation.




                                                     1
13-4151         United States v. Nagy                                            Page 2

Amendment rights because his three prior convictions, which enhanced his sentence under the
Armed Career Criminal Act, 18 U.S.C. § 924(e), were not submitted to the jury or proven
beyond a reasonable doubt, as required by the Supreme Court’s decision in Alleyne v. United
States, 133 S. Ct. 2151 (2013). In addition, Nagy contends that his sentence is unconstitutional
under the Eighth Amendment because it is contrary to the evolving national consensus and
standards of decency. Contrary to Nagy’s assertion, Alleyne does not require that a defendant’s
prior convictions be submitted to a jury, even if those convictions increase a defendant’s
statutory penalties. In addition, Nagy’s Eighth Amendment claim is foreclosed by this court’s
decision in United States v. Moore, 643 F.3d 451 (6th Cir. 2011), which squarely held that a
fifteen-year mandatory minimum sentence under the Armed Career Criminal Act is not cruel and
unusual punishment.

       On a snowy night in February 2013, an Akron police officer witnessed Nagy rummaging
for change in a car that was not his. The officer asked Nagy to come over and talk to him, and,
fearing that Nagy would run, placed him in handcuffs. Officer Metzger asked Nagy whether “he
had anything sharp on him that would poke, pinch, or stab” Metzger. Nagy immediately told
Metzger that he had a gun in his pocket, which Nagy had taken from a car by mistake. Nagy
testified that he had intended to dispose of the gun safely by putting it in a U.S. Post Office Box,
and was searching for a mailbox when he stopped to take change from a car as Metzger drove
by. Metzger searched Nagy and found a large amount of change, DVDs, Nintendo games,
multiple cell phones, several iPods, garments, costume jewelry, cologne, cigarettes, medications,
and lighters—none of which belonged to Nagy.

       The government charged Nagy with being a felon in possession of a firearm and
ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), and with knowingly possessing a
stolen firearm, in violation of 18 U.S.C. § 922(j). A jury found Nagy guilty of both counts. In a
sentencing memorandum, the government argued that Nagy qualified for a sentence
enhancement under the Armed Career Criminal Act (ACCA) because Nagy had “been previously
convicted of six separate violent felonies that he committed on occasions separate from one
another, which qualify as predicate offenses for the ACCA . . . . Consequently, a fifteen-year
mandatory minimum sentence is statutorily required.”
13-4151         United States v. Nagy                                            Page 3

       In response, Nagy contended that the ACCA could not apply to him because under the
Supreme Court’s decision in Alleyne, the government was required to submit the facts of Nagy’s
prior convictions to a jury, and to prove them beyond a reasonable doubt. Nagy acknowledged
that, “[t]he Alleyne Court did not specifically address whether prior convictions are elements” of
a § 924(c) offense that must be submitted to a jury, but argued that, nevertheless, “[t]he Court’s
broad language that ‘any fact that increases the mandatory minimum is an element’ seems to
indicate that prior convictions must be submitted to the jury as well.” Nagy read Alleyne as
implicitly overruling the Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224,
241–42 (1998), which held that prior convictions that enhance a defendant’s sentence are not
elements of a crime that must be submitted to a jury, and as expanding and applying the Court’s
holding in Apprendi v. New Jersey, 530 U.S. 466 (2000). Nagy requested that if the district court
found that the ACCA applied to his case, the district court sentence him to the statutory
mandatory minimum of 180 months.

       The government maintained that even though “[i]n Alleyne, the Court extended the
Apprendi rule to facts that increase a mandatory-minimum sentence and held that such facts must
be submitted to the jury, . . . the Court stated that prior convictions that increase a defendant’s
statutory penalties, such as those penalties that qualify under the ACCA, are not elements of the
offense that the government is required to prove to a jury.” The government also opposed
Nagy’s request for a downward variance.

       At sentencing, the district court revealed that as part of an ongoing “process to test
whether or not the Sentencing Guidelines reflect community sentiment,” the court had
distributed post-trial surveys to Nagy’s jurors, asking them to “state what you believe an
appropriate sentence is in months” for Nagy’s crime, given “every past conviction of the
Defendant.” The median recommended sentence was 18 months’ imprisonment. The district
court agreed with Nagy that Alleyne’s “central principle seems to call [Almendarez-Torres]
specifically in doubt,” but noted that the Court “didn’t specifically overrule” it. In addition, the
district court acknowledged that in United States v. Mack, 729 F.3d 594, 609 (6th Cir. 2013), the
Sixth Circuit stated explicitly that, “Although Almendarez-Torres may stand on shifting sands,
the case presently remains good law and we must follow it until the Supreme Court expressly
13-4151          United States v. Nagy                                         Page 4

overrules it.” The district court therefore found itself “hamstrung,” and bound to impose the
mandatory minimum sentence.

       The district court grouped Counts 1 and 2, and set Nagy’s base offense level at 24. The
court adjusted Nagy’s base offense level for prior convictions for violent felonies, and for the
fact that the gun in Nagy’s possession was stolen, and determined Nagy’s offense level to be 33,
with a Criminal Category of VI. After considering Nagy’s extremely troubled childhood, the
district court rejected the government’s request to sentence Nagy within the advisory Guideline
range of 235 to 293 months, noting that “the sentencing range in this case is so completely out of
whack with community sentiment.”         Instead, the court sentenced Nagy to the mandatory
minimum sentence of 180 months’ imprisonment under § 924(e), and to a concurrent 60 months
on the other count. The judge stated that he had “expressed perhaps ad nauseam the fact that this
is not a just punishment. It is nowhere close to a just punishment. It should never have been
indicted this way, and the United States Attorney’s Office should have never brought the case in
this fashion.”

       On appeal, Nagy argues that his Sixth Amendment rights were violated because the
government did not prove his convictions to a jury beyond a reasonable doubt, which he
contends is required under Alleyne. In addition, he argues that the national consensus and
evolving standards of decency require this court to find unconstitutional Nagy’s sentence under
18 U.S.C. § 924(e).

       The district court correctly sentenced Nagy to 180 months’ imprisonment, as required
under the ACCA. Contrary to Nagy’s assertion, Alleyne does not stand for the proposition that a
defendant’s prior convictions must be submitted to a jury and proven beyond a reasonable doubt,
even when the fact of those convictions increases the mandatory minimum sentence for a crime.
Alleyne overruled the distinction that the Court drew in Harris v. United States, 536 U.S. 545
(2002), between facts that increase the statutory maximum and facts that increase only the
mandatory minimum. The Court in Alleyne concluded that such a distinction is “inconsistent
with Apprendi[’s]” requirement that any fact, “other than the fact of a prior conviction,”
Apprendi, 530 U.S. at 490, that increases the penalty for a crime beyond the statutory maximum
be submitted to a jury and proven beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2163.
13-4151         United States v. Nagy                                             Page 5

Apprendi, therefore, preserved the Court’s earlier ruling in Almendarez-Torres that a prior
conviction is not “an element of the related crime” that must be submitted to a jury and proven
beyond a reasonable doubt. Almendarez-Torres, 523 U.S. at 246–47. Alleyne states that “any
fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury”;
but the Court in Alleyne explicitly declined to overrule Almendarez-Torres’ “narrow exception to
this general rule for the fact of a prior conviction.” Alleyne, 133 S. Ct. at 2155, 2160 n.1.

        Nagy frames “the seminal question” in his case as, “is Almendarez-Torres still good law
based on the Supreme Court cases over the last fifteen years[?]” The most recent of those
precedents, Alleyne, leaves no doubt that it is. Our own precedent compels the same conclusion:
“Almendarez-Torres is still good law and will remain so until the Supreme Court explicitly
overrules it.” United States v. Anderson, 695 F.3d 390, 398 (6th Cir. 2012). Nagy’s contention
that the holding in Almendarez-Torres has been “whittled away,” and that “Almendarez-Torres
has been overruled by implication,” and is “no longer good law,” is unavailing. “Although
Almendarez-Torres may stand on shifting sands, the case presently remains good law and we
must follow it until the Supreme Court expressly overrules it.” United States v. Mack, 729 F.3d
594, 609 (6th Cir. 2013). More recently, in United States v. Pritchett, 749 F.3d 417, 434 (6th
Cir. 2014), we again made clear that Almendarez-Torres has not been overruled: “Alleyne did not
disturb the holding in Almendarez-Torres.” Accordingly, Nagy’s Sixth Amendment rights were
not violated because the government was not required to submit Nagy’s prior convictions to the
jury.

        The 180-month mandatory minimum sentence that Nagy received pursuant to the ACCA
does not violate his Eighth Amendment right to be free from cruel and unusual punishment.
Nagy argues that his sentence is unconstitutional because of: 1) the community sentiment as
expressed by policymakers; 2) the facts of Nagy’s offense; 3) Nagy’s terrible childhood history;
and 4) the community sentiment expressed by the jurors at Nagy’s trial. Nagy’s arguments are
foreclosed by this court’s precedent. In Moore, we addressed a defendant’s claim that the
ACCA’s mandatory minimum penalty of 180 months’ imprisonment for being a felon in
possession of a firearm violated that defendant’s Eighth Amendment rights. We held that it did
not:
13-4151        United States v. Nagy                                          Page 6

               Fifteen years is by any measure a considerable amount of time. But while
       “[s]evere mandatory penalties may be cruel, . . . they are not unusual in the
       constitutional sense, having been employed in various forms throughout our
       Nation’s history.” Harmelin, 501 U.S. at 994–95, 111 S. Ct. 2680. In general,
       Eighth Amendment jurisprudence grants “substantial deference” to the
       legislatures who determine the types and limits of punishments. Id. at 999, 111 S.
       Ct. 2680 (Kennedy, J., concurring). It is settled that legislatures may define
       criminal punishments without giving courts sentencing discretion. Id. at 1006,
       111 S. Ct. 2680 (citing Chapman v. United States, 500 U.S. 453, 467, 111 S. Ct.
       1919, 114 L.Ed.2d 524 (1991). In fact, this Court has previously held that the
       very punishment Moore received—fifteen years under the Armed Career Criminal
       Act—withstands Eighth Amendment review as applied to the facts of those cases.
       United States v. Warren, 973 F.2d 1304, 1311 (6th Cir. 1992); United States v.
       Pedigo, 879 F.3d 1315, 1320 (6th Cir. 1989). Other courts of appeals have
       reached the same conclusion. See, e.g., United States v. Cardoza, 129 F.3d 6, 18
       (1st Cir. 1997); United States v. Presley, 52 F.3d 64, 68 (4th Cir. 1995); United
       States v. Hayes, 919 F.2d 1262, 1266 (7th Cir. 1990); United States v. Baker, 850
       F.2d 1365, 1372 (9th Cir. 1988); United States v. Reynolds, 215 F.3d 1210, 1214
       (11th Cir. 2000). And we are aware of no court of appeals decision that has
       struck down the Armed Career Criminal Act as violative of the Eighth
       Amendment.

Moore, 643 F.3d at 456. We addressed the same issue in United States v. Brown, 443 F. App’x
956, 960 (6th Cir. 2011), and again determined that imposition of the ACCA’s mandatory
minimum sentence does not violate an individual’s Eighth Amendment rights:

       Brown argues that ACCA’s mandatory minimum as applied to him violates his
       Fifth Amendment right to due process and equal protection and his Eighth
       Amendment right to be spared cruel and unusual punishment. We have seen this
       movie before, and each time it ends badly for the defendant. See, e.g., United
       States v. Moore, 643 F.3d 451, 456 (6th Cir. 2011); United States v. Jones,
       52 Fed. App’x. 244, 247 (6th Cir. 2002); United States v. Warren, 973 F.2d 1304,
       1311 (6th Cir. 1992). All for good reason: “Congress has the power to define
       criminal punishments without giving the courts any sentencing discretion,”
       Chapman v. United States, 500 U.S. 453, 467, 111 S. Ct. 1919, 114 L.Ed.2d 524
       (1991), and mandatory prison sentences are not cruel and unusual, Harmelin v.
       Michigan, 501 U.S. 957, 995–96, 111 S. Ct. 2680, 115 L.Ed.2d 836 (1991). In
       the teeth of these precedents Brown has not identified, nor have we found, any
       decision from any court invalidating the application of ACCA’s mandatory
       minimum to an individual on constitutional grounds. Brown gives no good
       reason for making this case the first.

       Nagy’s reliance on Attorney General Eric Holder’s memorandum on “Department Policy
on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug
13-4151         United States v. Nagy                                             Page 7

Cases” is misplaced. That memorandum addresses “certain drug cases,” not firearms cases, like
Nagy’s. Furthermore, the memorandum is a guidepost for Department of Justice prosecutors in
exercising prosecutorial discretion. It does not address the validity of mandatory minimum
sentences under the ACCA, and it expressly states that, “The policy set forth herein is not
intended to create or confer any rights, privileges, or benefits in any matter, case, or proceeding.
See United States v. Caceres, 440 U.S. 741 (1979).”

       There is no doubt that Nagy’s troubled childhood and difficult circumstances contributed
to the situation in which he now finds himself. The district court judge took that fact into
account when he granted Nagy a downward variance in his sentence. But as we stated in Brown,
Congress has the authority to limit the courts’ sentencing discretion, and mandatory minimum
sentences are not cruel and unusual.

       The striking and troubling harshness of the sentence in this case is a result of the statutory
mandatory minimum constitutionally imposed by Congress. This case is but a particularly clear
example of our sometimes difficult duty to apply the policy choices of Congress, rather than our
own.

       The judgment of the district court is AFFIRMED.
