USA v. Steven J. Nigg, 11-2340.      Under the Armed Career Criminal Act (“ACCA”), any person convicted of being a felon in possession of a firearm who has “three previous convictions… for a violent felony … committed on occasions different from one another” is subject to a mandatory minimum prison term of fifteen years. 18 U.S.C. § 924(e)(1). On June 6, 2011, the district judge in this case sentenced Steven J. Nigg—who has three prior felony armed robbery convictions, all of which stem from a crime spree that occurred more than thirty-five years ago—to the mandatory minimum sentence under the ACCA, to be followed by three years of supervised release.           

In November 1976, at the age of twenty-one, Nigg and his cohort, Dennis Oberheim, embarked on an extensive Arizona crime spree which included at least three armed robberies.     He received a concurrent sentence of fifteen to thirty years in prison on each armed robbery count, and additional charges were dismissed as part of a plea agreement.  

Following his release from prison in 1990, Nigg walked a more straight and narrow path.  Prior to sentencing, the district judge received “numerous letters of support testifying to Nigg’s kind and generous character, his willingness to help neighbors, and his involvement in community activities, notably marital arts classes for youth and annual appearances as a volunteer Santa Claus and Easter Bunny.”  

In 2009, however, Nigg’s life took a sharp turn for the worse. His father passed away, and he became executor of the estate. In a somewhat cruel twist of fate, the estate included over 120 firearms. Nigg’s stepmother soon became suspicious that Nigg was selling firearms in violation of the probate court’s restraining order. 

On September 4, 2009, the investigator entered Nigg’s consignment shop (which he ran out of his home) and purchased two rifles from Nigg for $1,600.00.  The ATF’s subsequent investigation resulted in Nigg’s arrest and indictment. 

A. Separation of Powers.    Nigg’s separation of powers argument goes as follows: giving prosecutors unfettered discretion to use prior convictions against defendants robs the judiciary of discretion, thus violating the separation of powers doctrine.  

Along these lines, many judges and academics have vociferously criticized the rigidity of mandatory minimum sentences, arguing that they amount to a legislative encroachment on the judiciary’s territory. See, e.g., United States v. Sidhom, 144 F.Supp.2d 41, 41 (D.Mass. 2001) (“[T]he government … now has the power to determine the severity of the punishment. As a result, courts are required to react passively as automatons and to impose a sentence which the judge may personally deem unjust.”); United States v. Patillo, 817 F.Supp. 839, 841 (C.D.Cal.1993) (“I … will no longer apply this law without protest, and with no hope for change. Statutory mandatory minimum sentences create injustice because the sentence is determined without looking at the particular defendant.”). 

Nigg’s policy arguments may be fertile ground for a vigorous debate where reasonable minds can disagree. Given the state of the law, however, such debate is little more than academic fodder. It is well-settled that “Congress has the power to define criminal punishments without giving the courts any sentencing discretion[,]” as “[d]eterminate sentences were found in this country’s penal codes from its inception[.]” Chapman v. United States, 500 U.S. 453, 467, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991) . 

As this Court recently recognized, “We have rejected separation of powers challenges to mandatory minimum sentences, and we see no reason to revisit that holding here.” United States v. Brucker, 646 F.3d 1012, 1019 (7th Cir.2011); see also United States v. Carraway, 612 F.3d 642, 646-47 (7th Cir.2010) (rejecting as meritless the argument 935*935 that a mandatory life sentence for dealing crack cocaine violates the doctrine of separation of powers); United States v. MacEwan, 445 F.3d 237, 252 (3d Cir.2006) (“Mandatory minimum sentencing provisions do restrict, or in some cases strip, the courts of the power to impose an individually-crafted sentence for a specific defendant; nevertheless, we cannot agree that the use of mandatory minimums violates the doctrine of separation of powers.”).

The reasoning in these cases applies with equal force here. 

 

This entry was posted in Press Releases. Bookmark the permalink.