                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 10-1827
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the Southern
                                          * District of Iowa.
Kurt Harrington,                          *
                                          * [PUBLISHED]
             Appellant.                   *
                                     ___________

                              Submitted: July 21, 2010
                                 Filed: August 23, 2010
                                  ___________

Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.
                          ___________

PER CURIAM.

       Kurt Harrington was convicted in 2009 of seven drug offenses, including
conspiring to manufacture, distribute, and possess with intent to distribute heroin and
at least 50 grams of cocaine base, resulting in death (Count 1); and distributing heroin,
resulting in death (Count 7). Pursuant to 21 U.S.C. §§ 841 and 851, the government
filed notice that Harrington was subject to a mandatory sentence of life imprisonment
by reason of a 2002 felony drug conviction. See 21 U.S.C. § 841(b)(1)(A) (sentence
shall be life imprisonment if death results from use of substance and violation was
committed after prior conviction for felony drug offense). The district court1
sentenced Harrington to concurrent terms of life in prison on Counts 1 and 7, and 360
months on each of the five remaining counts. Harrington appeals, arguing that (1) the
court violated the Sixth Amendment by enhancing his penalty based on his 2002
felony conviction, because the prior-conviction exception in Apprendi v. New Jersey,
530 U.S. 466 (2000), is “founded on bad law” and may soon be overruled; (2) the
enhanced penalty is similar to the enhancement improperly sought by the government
in Shepard v. United States, 544 U.S. 13 (2005), because it required the court to
determine facts about Harrington’s prior offense, and not just the existence of his
conviction; and (3) the mandatory life sentence prescribed by section 841 conflicts
with the sentencing goals of 18 U.S.C. § 3553(a), and thus it is unreasonable under
United States v. Booker, 543 U.S. 220 (2005). The government moves for summary
affirmance and to stay briefing. For the following reasons, we reject Harrington’s
arguments and affirm.

      First, Apprendi is inapplicable because Harrington faced a statutory maximum
sentence of life in prison regardless of his prior felony conviction. See Apprendi, 530
U.S. at 490 (other than fact of prior conviction, any fact that increases penalty for
crime beyond prescribed statutory maximum must be submitted to jury); 21 U.S.C.
§ 841(b)(1)(A) (in case of violation involving 50 grams or more of substance
containing cocaine base, sentence is 10 years to life in prison, and if death or serious
bodily injury results from use of such substance, sentence is 20 years to life); see also
United States v. McIntosh, 236 F.3d 968, 975 (8th Cir. 2001) (Apprendi was not
implicated where defendant was subject to statutory life term based on quantity of
drug involved, regardless whether death resulted from drug use).




      1
        The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.

                                          -2-
       Second, we see no violation of Shepard here. Although we have previously
discussed the principles of that case in connection with §§ 841 and 851, see United
States v. Ramon-Rodriguez, 492 F.3d 930, 940 (8th Cir. 2007), we have not held that
it applies in this context. Cf. United States v. Marsh, 561 F.3d 81, 87 (1st Cir. 2009)
("We have never extended Shepard's holding beyond the realm of the [Armed Career
Criminal Act] or the Career Offender Guideline, U.S.S.G. § 4B1.2 . . . ."). Even
assuming for the sake of argument that Shepard applied, Harrington's contention
would fail, for he acknowledges in his brief that the sentencing transcript from his
prior conviction, which was admitted at the continued sentencing hearing, showed that
he was convicted of a drug felony. See 544 U.S. at 26 (“enquiry under the [Armed
Career Criminal Act] to determine whether a plea of guilty to burglary defined by a
nongeneric statute necessarily admitted elements of the generic offense is limited to
the terms of the charging document, the terms of a plea agreement or transcript of
colloquy between judge and defendant in which the factual basis for the plea was
confirmed by the defendant, or to some comparable judicial record of this
information”).

       Third, because the conviction exposed Harrington to a mandatory sentence of
life imprisonment, his sentence is not unreasonable under Booker. See United States
v. Gregg, 451 F.3d 930, 937 (8th Cir. 2006) (district court lacks discretion to impose
non-Guidelines sentence below statutory minimum; Booker does not relate to
statutorily imposed sentences).

      Accordingly, we affirm the judgment of the district court. We also deny the
government’s motion as moot.
                     ______________________________




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