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

No. 06-4199
UNITED STATES OF AMERICA,
                                                Plaintiff-Appellee,
                                v.

RASHID A. SALAHUDDIN,
                                            Defendant-Appellant.
                         ____________
            Appeal from the United States District Court
               for the Eastern District of Wisconsin.
           No. 05 CR 145—Rudolph T. Randa, Chief Judge.
                         ____________
    ARGUED SEPTEMBER 17, 2007—DECIDED DECEMBER 19, 2007
                         ____________


    Before FLAUM, RIPPLE and WOOD, Circuit Judges.
  RIPPLE, Circuit Judge. Rashid A. Salahuddin was in-
dicted on June 7, 2005, on one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
After a jury found him guilty of the charge, he was sen-
tenced to 180 months in prison according to the armed
career criminal provisions of 18 U.S.C. § 924(e).1 He now



1
  The jurisdiction of the district court was premised on 18 U.S.C.
§ 3231; 28 U.S.C. § 1331.
2                                                 No. 06-4199

appeals his conviction by jury and his sentence.2 For the
reasons set forth in this opinion, we vacate the judgment
of the district court and remand the case for further
proceedings.


                               I
                      BACKGROUND
  On January 13, 2003, Milwaukee County Sheriff’s detec-
tives sought Mr. Salahuddin on an outstanding escape
warrant.3 Mr. Salahuddin’s wife gave the detectives
consent to search the couple’s apartment,4 where they
found two firearms in a bedroom closet. The next day, the
detectives arrested Mr. Salahuddin after they saw him
enter the apartment. When asked whether there were
any firearms in the apartment, Mr. Salahuddin indicated
that there were two rifles belonging to his wife in the
bedroom closet.
  Mr. Salahuddin was indicted on June 7, 2005, on one
count of being a felon in possession of a firearm, in viola-
tion of 18 U.S.C. § 922(g)(1). On September 2, he began to
plead guilty, but he changed his mind during the plea
hearing when he was told that the plea meant giving up


2
  We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a).
3
   Mr. Salahuddin had failed to return to the corrections facil-
ity while on work release.
4
  Mr. Salahuddin disputed whether his wife gave consent to
search in his motion to suppress. The district court denied the
motion as untimely. We discuss this disposition at length in
this opinion.
No. 06-4199                                                   3

his right to attempt to suppress evidence that the Gov-
ernment had obtained. However, Mr. Salahuddin again
changed his mind, and, on September 7, five days before
his scheduled trial, he entered a plea of guilty. The dis-
trict court scheduled a sentencing hearing for December 7.
  Shortly before the sentencing hearing, the parties moved
for a postponement in sentencing in order to permit them
to investigate whether Mr. Salahuddin should be treated
as an armed career criminal under 18 U.S.C. § 924(e), on
the ground that his juvenile conviction for armed rob-
bery actually had involved a number of victims at dif-
ferent locations. The district court granted the postpone-
ment. On December 28, the court received a presentence
report (“PSR”) that recommended that Mr. Salahuddin
be treated as an armed career criminal.
  On January 6, 2006, Mr. Salahuddin’s retained counsel
moved for, and was granted, leave to withdraw. On
January 23, his new counsel moved to withdraw the
guilty plea. Counsel pointed out to the court that the
guilty plea was entered because the Government had
represented to prior counsel that it did not believe that
Mr. Salahuddin qualified as an armed career criminal. On
February 28, the district court granted the motion to
withdraw the guilty plea.5 The district judge who had
granted the motion then recused himself, and the case


5
  Mr. Salahuddin also contended that his motion to withdraw
the guilty plea should be granted because his original counsel
was inexperienced in federal law and did not recognize the
unique facts of Mr. Salahuddin’s criminal history that qualified
him as an armed career criminal and because Mr. Salahuddin
evidenced concern about the possibility that he could be so
sentenced.
4                                                 No. 06-4199

was transferred to the docket of another district judge
sitting in the same district. Trial was scheduled for May 18.
  On March 27, 2006, Mr. Salahuddin filed pretrial motions
to suppress evidence and statements. These motions
were untimely because the district court had set July 7,
2005 as the date for the filing of such motions. On April 5,
2006, the magistrate judge to whom these motions were
assigned nevertheless ruled that the motion ought to be
entertained and that an evidentiary hearing ought to be
conducted. He believed that the delay in filing the
motion was due in part to the “uncertainty regarding the
applicability of the armed career criminal enhancement.”
R.39 at 3. The judge further took into consideration that
Mr. Salahuddin had new counsel and that it appeared that
there were significant factual issues that needed to be
decided at an evidentiary hearing.
  On May 3, the district judge reviewed and reversed
the decision of the magistrate judge. The district judge, in
a two-paragraph order, simply stated that, after a review
of the briefs, he had concluded that the “good cause”
requirement that permits the filing of such motions after
the deadline had not been met. R.49. On August 15,
2006, Mr. Salahuddin was convicted by jury and, on
November 21, 2006, was sentenced to 180 months of
incarceration. On November 29, 2006, he filed a timely
appeal.


                              II
                       DISCUSSION
                              A.
  A motion to suppress evidence must be filed prior to
trial. Fed. R. Crim. P. 12(b)(3)(C); United States v. Mancillas,
No. 06-4199                                                    5

, 703 (7th Cir. 1999). A party “waives any Rule
12(b)(3) defense, objection, or request not raised by the
deadline the court sets.” Fed. R. Crim. P. 12(e). However,
the district court may, for good cause, “grant relief from
the waiver.”6 Id.; see also United States v. Johnson, 

, 730-31 (7th Cir. 2005).
  We review for clear error the district court’s discretionary
decision not to review an untimely pre-trial motion. United
States v. Hamm, 

, 806 (7th Cir. 1986). We
approach a district court’s ruling on whether to permit an
untimely motion to suppress with great deference to the
judgment of the district court. “District judges, because
of the very nature of their duties and responsibilities
accompanying their position, possess great authority to
manage their caseload.” United States v. Coronado-Navarro,

, 572 (7th Cir. 1997) (quoting United States v.
Reed, 

, 1447 (7th Cir. 1993)); see also Brooks v.
United States, 

, 256-57 (7th Cir. 1995) (noting
that matters of trial management are for the district judge).
  A plea agreement was filed in this case on September 2,
2005. This document was the first filing in the case. On the
date of that filing, Mr. Salahuddin appeared before the
district court to enter a plea of guilty. That attempt failed
when the district court explained to him that the entry of
any plea would waive his right to raise any claim that the
Government had obtained evidence through an illegal
search. Nevertheless, several days later, on September 7,


6
  We have construed the term “waiver” under Rule 12(e) as
constituting a forfeiture that does not preclude appellate
review. United States v. Davenport, 

, 1048 (7th Cir.
1993).
6                                                No. 06-4199

Mr. Salahuddin appeared again before the court and
entered a guilty plea.
  On the day before sentencing was to take place, the
parties jointly requested a postponement in order to
determine whether Mr. Salahuddin was subject to the
armed career criminal provisions of 18 U.S.C. § 924(e).
Several weeks later, the parties informed the court of the
applicability of the provisions and that Mr. Salahuddin
was considering asking that he be permitted to withdraw
his guilty plea. At this point, the district court appointed
new counsel for him. On January 23, several weeks later,
Mr. Salahuddin, with new counsel, filed a motion to
withdraw his plea. On February 28, 2006, the district
court, noting “particularly the facts and circumstances
surrounding the defendant’s plea in this case,” allowed
Mr. Salahuddin to withdraw his plea and recused itself
from further proceedings. It is against this background
that the magistrate judge permitted the late filing of the
motion to suppress.7
  The issue of whether the defendant should have been
permitted to file his motion to suppress comes to us in a
considerably more complex context than the one in
which such motions usually appear. On the one hand, it
does not appear, and we do not understand counsel to
argue, that the delay in filing the motion to suppress can


7
  The magistrate judge did not specifically determine that
Mr. Salahuddin had shown good cause for his delay. Instead,
the magistrate described the determination that the court
should address the motions to suppress as one made “in the
interests of justice.” Because we believe that there was good
cause to address the motions, the magistrate’s articulation of
an imprecise standard was harmless.
No. 06-4199                                               7

be laid exclusively at the feet of the Government. Nor
can we say with any assurance that the delay in filing the
motion was due to counsel’s “negligence, oversight, or
laziness.” United States v. Chavez, 

, 263 (4th
Cir. 1990). We certainly cannot say that this motion was
simply based on Mr. Salahuddin’s “mistaken belief that
he was free to ignore the court’s order and raise the
issue any time he wished.” 

. Rather, it appears that, here, the failure to file was
due in large part to a mutual misapprehension by both
the Government and the defense as to the facts underly-
ing Mr. Salahuddin’s juvenile conviction and whether
these factual circumstances permitted that offense to be
counted as multiple prior offenses. The ambiguity—and
complexity—of the situation is compounded by the fact
that the district court, albeit with a different district
judge presiding, had determined previously that Mr.
Salahuddin ought to be permitted to withdraw his guilty
plea. In determining that earlier motion, the issue of
confusion over the appropriate treatment of the juvenile
conviction had played a significant part. The correctness
of that ruling is not before us.
  The magistrate judge’s initial determination that the
suppression motion should be entertained was rooted in
the practicalities of the situation. It seems incongruous to
permit a defendant to withdraw a guilty plea and go to
trial while not permitting him to litigate the admissibility
of significant evidence. It is true that the considerations
governing such a motion are different in every case and
rarely all favor one side. With respect to this suppression
motion, Mr. Salahuddin no doubt knew of the factual
disputes that would require an evidentiary hearing
well before the filing deadline for motions to suppress. On
8                                                 No. 06-4199

the other hand, although the uncertainty over the ap-
plicability of the armed career criminal provisions did not
preclude his filing a suppression motion, there was defi-
nitely a practical relationship between the uncertainty
about the statute and the decision not to file. That practical
relationship cannot be ignored. Certainly, once Mr.
Salahuddin was permitted to withdraw his plea and go
to trial, it made sense to permit him to litigate the sup-
pression motion.
  Moreover, it is not clear that, under these circumstances,
permitting the defendant an opportunity to test whether
the key evidence against him is admissible, after he
withdrew a guilty plea, controverts the purpose of Rule
12(e). Here, neither the speed and efficiency of the judi-
cial process nor fairness to the Government appears to
be at stake. The pretrial motions requirement embodied
in Rule 12 serves “an important social policy and not a
narrow, finicky procedural requirement,” Jones v. United
States, 

, 264 (1960), overruled on other grounds,
United States v. Salvucci, 

, 95 (1980), and these
goals would not be jeopardized by granting a hearing
on the motion to suppress in these unique circumstances.
Mr. Salahuddin’s motion, although untimely under the
schedule originally set by the district court, would not
have postponed the trial schedule. After the magistrate
judge granted the motion for a hearing on the motion to
suppress, he reset the trial date. Therefore, at the time
the district court refused to hold a suppression hearing,
the trial was scheduled for three months in the future.8


8
 On April 5, when the magistrate judge granted the untimely
motion for a suppression hearing, the trial was set for May 15.
                                                 (continued...)
No. 06-4199                                                   9

Furthermore, Mr. Salahuddin filed a waiver of his rights
under the Speedy Trial Act, 18 U.S.C. § 3161. Notably, the
Government makes no argument that it would have been
prejudiced by permitting Mr. Salahuddin to receive a
ruling on his suppression motion. If the district court had
heard the motion and suppressed the evidence, the Gov-
ernment could have appealed that suppression, see 18
U.S.C. § 3731,9 because the jury was not yet sworn and
jeopardy had not attached. Cf. United States v. Centracchio,

, 813-14 (7th Cir. 2001) (alluding to a concern
that the Government may not appeal a suppression
determination once jeopardy attaches). In this situation,
permitting the defendant to pursue his suppression
motion does not implicate the social costs associated
with granting a motion to suppress that is raised after a
jury has been sworn or that is raised for the first time on
appeal. Cf. United States v. Chavez-Valencia, 

,
131-33 (5th Cir. 1997) (detailing the social costs that arise
when an untimely motion is entertained after the jury is
empaneled or when the matter is raised for the first time
on appeal).



8
  (...continued)
The magistrate judge set the hearing for May 18 and, on April
11, rescheduled the trial from May 15 to August 14. Thus, on
May 3, when the district court reversed the magistrate judge,
the trial was set for August 14; that is, three months in the
future.
9
   This statute provides: “An appeal by the United States shall
lie to a court of appeals from a decision or order of a district
court suppressing or excluding evidence . . . in a criminal
proceeding, not made after the defendant has been put in
jeopardy and before the verdict.” 18 U.S.C. § 3731.
10                                                No. 06-4199

  Given these unique circumstances—especially the
mutual misapprehension of the Government and the
defense about the applicability of the armed career crim-
inal provisions, and the consequent granting of a new
trial by the district court—and the district court’s failure
to express any countervailing consideration, we must
conclude that the district court should have given
Mr. Salahuddin an opportunity to present and to litigate
his suppression motion.


                              B.
  Mr. Salahuddin also suggests, apparently to preserve
the argument for possible review by the Supreme Court,
that the armed career criminal provisions of 18 U.S.C.
§ 924(e) increased his sentence in violation of the Fifth
and Sixth Amendments. The armed career criminal provi-
sions permit a judge to increase a defendant’s sen-
tence based on prior convictions, without putting those
convictions before a jury and requiring the jury to find
them beyond a reasonable doubt. Mr. Salahuddin con-
tends that, according to the Supreme Court’s interpreta-
tion in United States v. Booker, 

(2005), the
provisions conflict with the Constitution.
  A prior conviction need not be put to a jury before it may
be used to enhance a defendant’s sentence. Almendarez-
Torres v. United States, 

, 247 (1998); see also
Shepard v. United States, 

, 25-26 (2005).
Mr. Salahuddin acknowledges our holdings that the
“prior conviction” exception is good law. See, e.g., United
States v. Wilburn, 

, 745-46 (7th Cir. 2007); United
States v. Browning, 

, 781-82 (7th Cir. 2006). He
further acknowledges that, although we have stated
No. 06-4199                                               11

previously that the prior conviction exception is “vulnera-
ble to being overruled” by Booker, the issue is not for us,
but the Supreme Court, to decide. 

. The Supreme Court has not overruled Almendarez-
Torres. Therefore, we must reject Mr. Salahuddin’s
claim that the jury should have found his prior convic-
tions beyond a reasonable doubt.


                             C.
  Finally, Mr. Salahuddin challenges the use of his armed
robbery offenses, committed while he was a juvenile, to
increase his sentence under the armed career criminal
provisions of 18 U.S.C. § 924(e). Mr. Salahuddin submits
that, in light of Roper v. Simmons, 

(2005), the
armed career criminal provisions violate the Eighth
Amendment because they permit a sentence increase
based on crimes that the defendant committed as a juve-
nile. We cannot accept this contention.
  Mr. Salahuddin contends that Roper prohibits increas-
ing a sentence under the armed career criminal provi-
sions for conduct that occurred when the offender was
a juvenile but for which he was waived into adult court
and there convicted. That contention is without merit.
United States v. Wilks, 

, 1243 (11th Cir. 2006).
Roper held that executing a person for conduct that oc-
curred before the offender was eighteen violates the
Eighth Amendment, but it permitted imposing a sen-
tence of life imprisonment based on conduct that occurred
when the offender was a 

. Roper
did not specifically or even tangentially address increas-
ing a sentence to imprisonment on the basis of juvenile
crimes or convictions. 

. The Court’s
12                                               No. 06-4199

reasoning in Roper was based “in large measure on the
‘special force’ with which the Eighth Amendment
applies when the state imposes the ultimate punishment
of death.” United States v. Mays, 

, 340 (5th
Cir. 2006) (citing 

). The reasoning
in Roper therefore applies “with only limited, if any,
force outside of the context of capital punishment.” United
States v. Feemster, 

, 588 (8th Cir. 2007).
  Our previous decisions, the case law of the Supreme
Court and our sister circuits all support the district court’s
use of the convictions in question. We have affirmed a
sentence that was increased under the armed career
criminal provisions by conduct that occurred when the
offender was a juvenile. 

. Roper
itself affirmed that a person may be sentenced to life
imprisonment for his juvenile 

, 578-
79. Additionally, our sister circuits that have addressed
whether conduct that occurred when the offender was a
juvenile may increase a sentence issue in light of Roper
have uniformly concluded that the increase does not
violate the Eighth Amendment. See, e.g., 

(holding Roper does not prohibit using juvenile
conduct to enhance a sentence under the Sentencing
Guidelines); 

(same); 

(holding that juvenile conduct may be used to
increase a sentence under the armed career criminal
provisions).
  Forbidding the execution of a youthful offender is an
entirely different proposition than increasing the sentence
of an adult offender on the basis of conduct that occurred
when the offender was a juvenile. 

.
We therefore hold that the Eighth Amendment does not
prohibit using a conviction based on juvenile conduct to
No. 06-4199                                               13

increase a sentence under the armed career criminal
provisions.


                        Conclusion
   Accordingly, we must vacate the judgment of the district
court and remand the case for further proceedings. On
remand, the district court must permit the defendant to
litigate his suppression motion. If the district court grants
the motion, it must grant the defendant a new trial in
order to permit a jury to determine the question of guilt or
innocence in the absence of the suppressed evidence. If
the court denies the motion to suppress, it shall reinstate
its judgment, and Mr. Salahuddin may seek, if he wishes,
further review in this court.
                                  VACATED and REMANDED

A true Copy:
       Teste:

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




                   USCA-02-C-0072—12-19-07