United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 08-1047
                                  ___________

United States of America,                *
                                         *
      Appellee,                          *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Missouri.
Emmanuel Preston Sohn,                   *
                                         *
      Appellant.                         *

                                  ___________

                             Submitted: April 14, 2009
                                Filed: May 28, 2009
                                 ___________

Before RILEY, BENTON, and SHEPHERD, Circuit Judges.
                            ___________

BENTON, Circuit Judge.

      Emmanuel Preston Sohn pled guilty to a one-count indictment of unlawful
possession of a firearm. The district court1 applied an enhancement under the Armed
Criminal Career Act based on his prior felony convictions. The indictment does not
mention the ACCA, or the predicate convictions. Sohn appeals the sentence
enhancement based on his Fifth Amendment right to a Grand Jury indictment on each
crime charged. This court affirms.

      1
       The Honorable Jean C. Hamilton, Judge, United States District Court for the
Eastern District of Missouri.
       Sohn was indicted as a felon in possession of a firearm, an offense punishable
by a maximum of ten years imprisonment. See 18 U.S.C. §§ 922(g)(1), 924(a)(2).
The indictment does not list the three predicate felonies that subjected him to a
mandatory fifteen-year minimum under the ACCA. 18 U.S.C. § 924(e). However,
Sohn was aware at the time of his guilty plea that he may be sentenced under the
ACCA. The Pre-Sentence Report summarized his prior convictions, recommending
application of the ACCA. Sohn objected to the recommendation (but has never
questioned the accuracy of the PSR’s summaries of the prior convictions). The
district court accepted the ACCA’s fifteen years as the starting point, gave credit for
24 months served, and imposed a sentence of 156 months—a punishment greater than
the maximum under § 924(a)(2).

       This court reviews the district court’s factual findings for clear error, and the
application of the law to the facts de novo. United States v. Campbell, 

,
706 (8th Cir. 2001). Questions of law regarding the violation of the Fifth Amendment
are reviewed de novo. United States v. Purkey, 

, 748 (8th Cir. 2005).

       Sohn argues the ACCA enhancement was unconstitutional because under the
Fifth Amendment, a defendant can be convicted only of a crime charged in the
indictment. Since the indictment did not charge him with a violation of the ACCA,
or include his prior convictions, Sohn claims the maximum sentence is ten years under
§ 924(a)(2).


        The Fifth Amendment states: “No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury
. . . .” U.S. Const. amend. V. This constitutional guarantee presupposes an
investigative body “acting independently of either prosecuting attorney or judge.”
Stirone v. United States, 

, 218 (1960). Generally, the words
"presentment" and "indictment" are interchangeable under the Fifth Amendment. See
Hale v. Henkel, 

, 60-61 (1906) (explaining presentments—charges made

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by a Grand Jury from it’s own knowledge or observations without any accusation
from the prosecutor—have largely fallen into disuse in this country).


      An indictment is sufficient if it contains “all of the essential elements of the
offense charged, fairly informs the defendant of the charges against which he must
defend, and alleges sufficient information to allow a defendant to plead a conviction
or acquittal as a bar to a subsequent prosecution.” United States v. Cavins, 

, 458 (8th Cir. 2008), citing United States v. Fleming, 

, 1265 (8th Cir.
1993).

       The Supreme Court has directly addressed whether an indictment must allege
the fact of a prior conviction in order to expose a defendant to an enhanced sentence.
See Almendarez-Torres v. United States, 

(1998). There the indictment
charged a violation of 18 U.S.C. § 1326. 

Subsection 1326(a) authorizes
a maximum of two years’ imprisonment. At sentencing, the prison term was enhanced
due to prior felony convictions under subsection 1326(b)(2), which authorizes a
maximum of twenty years. 

the defendant claimed that his sentence
was unjustified because the indictment did not include his prior felony convictions,
and the court could not sentence him to more than the maximum in § 1326(a). 

Court held that § 1326(b)(2), a penalty provision, does not define a
separate crime; therefore the Government need not charge the fact of an prior
conviction in the indictment. 

Further, the Court reasoned that making
the jury aware of the defendant’s prior felonies would unfairly prejudice the
defendant. 

       In Apprendi, the Supreme Court did not revisit Almendarez-Torres. Apprendi
v. New Jersey, 

(2000). The Court, interpreting the Sixth Amendment
right to a jury trial, held that “any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved beyond a


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reasonable doubt.” 

The Court created an exception for “the fact of a prior
conviction,” because that fact had already been protected at a trial by jury. 

in United States v. Campbell recognized the continuing validity of
Almendarez-Torres as a narrow exception to the rule announced in Apprendi. United
States v. Campbell, 

, 708 (8th Cir. 2001). Sohn attempts to distinguish
Campbell, asserting that a different constitutional amendment is at issue here, and
there the fact of the prior convictions (and the ACCA) were included in the
indictment. To the contrary, this court has recognized that Almendarez-Torres
addressed the Fifth Amendment right to indictment by a grand jury. See United States
v. Kempis-Bonola, 

, 702 (8th Cir. 2002). And, Campbell cites
decisions where neither the ACCA, nor the prior convictions, were included in the
indictment. 

n.7, citing United States v. Tighe, 

, 1190-91 (9th Cir. 2001), United States v. Thomas, 

, 1034-35
(11th Cir. 2001), and United States v. Dorris, 

, 586-87 (10th Cir. 2000).

       Sohn’s indictment satisfied the Fifth Amendment by including the substantive
offense, and the district court may apply a sentence enhancement statute not cited in
the indictment, based on prior convictions also not included in the indictment.

      The judgment is affirmed.
                      ______________________________




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