Appellee, SUMMARY ORDER v. RICARDO A. SHAKELLWOOD, also known as Kenneth P. Phillips,, (2nd Cir. 2001)

Docket Number: 00-1701

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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 13th day of June , two thousand one.

PRESENT:

HON. RALPH K. WINTER, HON. CHESTER J. STRAUB, HON. ROSEMARY S. POOLER Circuit Judges.

UNITED STATES OF AMERICA, Appellee, SUMMARY ORDER No. 00-1701

v.

RICARDO A. SHAKELLWOOD, also known as Kenneth P. Phillips, Defendant-Appellant.

Appearing for Appellant: David A. Lewis, The Legal Aid Society, Federal Defender Division Appeals Bureau, New York, NY.

Appearing for Appellee: Katherine Polk Failla, Assistant United States Attorney (Mary Jo White, United States Attorney for the Southern District of New York, Baruch Weiss, Assistant United States Attorney, of counsel), New York, NY.

Appeal from the United States District Court for the Southern District of New York (Harold Baer, Jr., Judge).

AFTER ARGUMENT AND UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the District Court is hereby AFFIRMED.

Defendant-appellant Ricardo Shakellwood ("Shakellwood") appeals from a judgment of the United States District Court for the Southern District of New York (Harold Baer, Jr., Judge)

convicting him, following his guilty plea. Shakellwood pled guilty to illegally reentering the United States after having been deported in violation of 8 U.S.C. 1326(a) and (b)(2). Shakellwood was sentenced to a term of 70 months' imprisonment, to run concurrently with the undischarged portion of a New York State sentence then being served by Shakellwood, and to be followed by three years of supervised release. (Red 2)

On appeal, Shakellwood advances two contentions. First, he argues that under Apprendi v.

New Jersey, 530 U.S. 466 (2000), his sentence was unconstitutional to the extent that it exceeded two years' imprisonment because his sentence was based on a fact—the commission of an aggravated felony prior to his earlier deportation—that was not charged in the indictment nor admitted when he pled guilty.

He urges us to decline to follow Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998), which rejected the argument he now advances, because that precedent has lost all force after Apprendi. Second, he argues that we should remand for resentencing because the District Court misunderstood its authority to grant an "adjusted" sentence to achieve a full concurrent sentence or to depart from the Guideline range to achieve concurrency by applying the methodology of Application Note 2 of U.S.S.G. § 5G1.3 to cases, such as his, that are analyzed under U.S.S.G. § 5G1.3(c).

Two recent decisions of this Court, decided after the briefing on this appeal was completed, foreclose his arguments. In United States v. Latorre-Benavides, 241 F.3d 262, 264 (2d Cir.), cert.

denied, 121 S. Ct. 2013 (2001), we held that Almendarez-Torres still governed cases such as Shakellwood's. In United States v. Fermin, No. 00-1417, _ F.3d _, 2001 WL 599931, at *3—*4

(2d Cir. May 29, 2001), we rejected the precise argument Shakellwood advances and held that the methodology of Application Note 2 does not apply to U.S.S.G. § 5G1.3(c) cases. Moreover, we have indicated that there is no basis in the current § 5G1.3 and its accompanying application notes for a downward departure to achieve a reasonable incremental punishment. See id. at *5.

CONCLUSION For the reasons provided above, the judgment of the District Court is AFFIRMED.