USA v. Rivera, (3rd Cir. 2006)
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N O T PRECEDENTIAL
U N IT E D STATES COURT OF APPEALS
F O R THE THIRD CIRCUIT
N o . 05-5329
U N IT E D STATES OF AMERICA,
Appellee,
vs.
R Y A N RIVERA,
Appellant.
O n Appeal from the United States District Court
F o r the District of New Jersey
(C rim . No. 05-63)
D istric t Judge: Honorable Jerome B. Simandle
S u b m itte d Under Third Circuit L.A.R. 34.1(a)
N o v e m b e r 27, 2006
B e f o re : FUENTES and GARTH, Circuit Judges, and POLLAK, District Judge *
(O p in io n Filed: December 4, 2006)
O P IN IO N
G A R T H , Circuit Judge: In this appeal, Ryan Rivera challenges the 27 month prison sentence he received f o r the crime of possession of drugs in a federal prison. Rivera claims that the district c o u rt improperly increased his sentence based on prior convictions that were neither a d m itte d nor submitted to a jury. Because Almendarez-Torres v. United States, 523 U.S.
2 2 4 (1998), which permits a sentencing court to find facts relating to prior convictions, is s till binding on us, we will affirm.
I.
T h e facts of this case are straightforward and undisputed. Since 2002, appellant R ya n Rivera had been imprisoned at the Fairton Federal Correctional Institution on a c o n v ic tio n for being a felon-in-possession of a firearm. On August 22, 2004, Rivera was o b s e rv e d receiving suspected contraband from a visitor. Several days later, 1.217 grams o f cocaine were recovered from his person.1 On August 24, 2005, Rivera pleaded guilty, p u rsu a n t to a plea agreement, to a one-count Superseding Information, charging him with p o s s e ss in g a prohibited object in a federal prison, specifically a narcotic drug, in violation o f 18U.S.C. §§ 1791(a)(2), (b)(1), and (b)(2).2 T h e PSR recommended a total offense level of 11. The PSR further calculated R iv e ra 's Criminal History pursuant to U.S.S.G. § 4A1.1.3 The PSR assessed three 2 Section 1791(a)(2) provides that "[w]hoever . . .being an inmate of a prison, m a k e s, possesses, or obtains, or attempts to make or obtain, a prohibited object shall be p u n is h e d as provided in subsection (b) of this section." The punishment for violations of section 1791(a)(2) is set forth in section 1791(b), w h ich states, in pertinent part: T h e punishment for an offense under this section is a fine under this title or- (1) imprisonment for not more than 20 years, or b o th , if the object is specified in subsection (d )(1 )(C ) of this section; (2) imprisonment for not more than 10 years, or b o th , if the object is specified in subsection (d )(1 )(A ) of this section S ec tio n s 1791(d)(1)(A) and (d)(1)(C) referred to in section 1791(b) define the term " p ro h ib ite d object"in section 1791(a)(2) to include "a narcotic drug" or "a controlled s u b s ta n c e in schedule I or II, other than marijuana."
3 U.S.S.G. § 4A1.1 provides: T h e total points from items (a) through (f) d e te rm in e the criminal history category in the S e n te n c in g Table in Chapter Five, Part A.
( a ) Add 3 points for each prior sentence of im p ris o n m e n t exceeding one year and one month.
(b ) Add 2 points for each prior sentence of im p riso n m e n t of at least sixty days not counted in (a).
(c ) Add 1 point for each prior sentence not c o u n te d in (a) or (b), up to a total of 4 points for th is item.
(d ) Add 2 points if the defendant committed the c rim in a l history points for a 1997 New York drug distribution conviction; three points for a 1997 New York grand larceny conviction; three points for a 2003 New York drug p o s s e ss io n conviction; three points for Rivera's 2002 federal felon-in-possession c o n v ic tio n ; one point for a 2003 conviction for possessing contraband in prison; and two p o in ts for committing the instant offense while imprisoned, for a total of 15 points and a re su ltin g criminal history category of VI. The corresponding guidelines sentencing range w a s 27 to 33 months.
Rivera was sentenced on December 2, 2005. At sentencing, Rivera argued that his p rio r convictions, which were neither admitted nor submitted to a jury, could not, co n sisten t with the Sixth Amendment, be considered to increase his sentence.4 Rivera a c k n o w le d g e d that, under Almendarez-Torres v. United States, 523 U.S. 224 (1998), a s e n te n c in g judge is permitted to find facts relating to prior convictions and enhance the m a x im u m penalty accordingly. Rivera argued, however, that the more recent Supreme C o u rt cases of Shepard v. United States,
The district court rejected Rivera's argument and sentenced him based upon his p rio r convictions and the resulting criminal history category of VI to 27 months im p riso n m en t, the bottom of the recommended guidelines range. Because Rivera c o m m itte d the crime while incarcerated, the court ordered that the sentence run c o n c u rre n tly to the sentence he was then serving. A90. Rivera filed a timely notice of a p p e a l.
II.
R ivera makes just one argument on appeal. Rivera asserts that the district court v io la te d his Sixth Amendment right to trial by jury by increasing his sentence based upon p rio r convictions that were neither admitted nor submitted to a jury. Rivera acknowledges th a t the Supreme Court's 1998 decision in Almendarez-Torres specifically held that rec idivism , i.e., the fact of prior convictions, is not an element of a crime, and therefore n e e d not be found by a jury. Id. at 239-48. Rivera argues, however, that AlmendarezT o rre s has, by subsequent decisions, been "sufficiently undermined to compel the c o n c lu s io n that the Sixth Amendment prohibits a district court from finding the fact of a p rio r conviction and using that fact to enhance a defendant's sentence." App. Br. at 11.
Rivera's argument fails for two independent reasons. First, none of the cases he c ites Shepard, Booker, and Apprendi v New Jersey, 530 U.S. 466 (2000) have, in fact, im p licitly or explicitly overruled Almendarez-Torres. In Apprendi, the Court specifically h e ld that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved b e yo n d a reasonable doubt." Id. at 490(emphasis added). Likewise, Booker, while s trik in g down the statutory provisions making the guidelines mandatory as violative of the S ix th Amendment, preserved the holding of Almendarez-Torres that prior convictions n e e d not be found by a jury: Any fact (other than a prior conviction) which is n e c es s a ry to support a sentence exceeding the m a x im u m authorized by the facts established by a p le a of guilty or a jury verdict must be admitted by th e defendant or proved to a jury beyond a re a so n a b le doubt.
B o o k e r, 543 U.S. at 244 (emphasis added).
The final case cited by Rivera, Shepard v. United States,
Shepard, 544 U.S. at 26. A plurality of the Court held that in a state where the statutory d e f in itio n of burglary was limited to the elements of "generic" burglary, "a judicial finding o f a disputed prior conviction is made on the authority of Almendarez-Torres." Shepard, 5 4 4 U.S. at 24. However, the plurality contrasted this to states where the statutory d e f in itio n of burglary encompassed more than the "generic" offense, such that relying on p o lice reports or complaint applications as opposed to charging documents, jury in s tru c tio n s , plea colloquies, or express findings of fact by the trial judge would be "too f a r removed from the conclusive significance of a prior judicial record, and too much like th e findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly a u th o riz e s a judge to resolve the dispute." Id. The Shepard court thus limited the scope of ju d ic ia l fact-finding permitted under Almendarez-Torres.
In a dissent by then Justice O'Connor, several members of the Court expressed co n ce rn about what the decision portended for the Almendarez-Torres rule: "[T]oday's d e c i sio n reads Apprendi to cast a shadow possibly implicating recidivism determinations, w h ic h until now had been safe from such formalism. . . ." Shepard, 544 U.S. at 38 (O 'C o n n o r, J., dissenting). And Justice Thomas, who had expressed his dissatisfaction w ith the Almendarez-Torres exception in his concurring opinion in Apprendi, see 530 U.S. a t 520-21 (Thomas, J., concurring), repeated his view that "Almendarez-Torres . . . has b e e n eroded by this Court's subsequent Sixth Amendment jurisprudence, and a majority of th e Court now recognizes that Almendarez-Torres was wrongly decided." Shepard, 544 U .S . at 27-8 (Thomas, J., concurring) (internal citations omitted).
This court has already considered the question whether Almendarez-Torres is still g o o d law despite Booker, Apprendi, and Shepard. In United States v. Ordaz, 398 F.3d 236 (3 d Cir. 2005), the defendant, who had been convicted for conspiring to distribute cocaine, c h a llen g e d his thirty-year sentence claiming that it was the result of improper judicial factf in d in g . Although the conspiracy charge ordinarily carried a twenty-year maximum se n ten c e , a related statute, 21U.S.C. § 841(b)(1)(C), provides that "if any person commits s u c h a violation after a prior conviction for a felony drug offense has become final, such p e rs o n shall be sentenced to a term of imprisonment of not more than 30 years . . . ." Id.
The district court found that the defendant had been convicted of a felony drug offense th a t had become final and, applying section 841(b)(1)(C), sentenced the defendant to the e n h a n c e d thirty years prison term.
Like Rivera, the defendant in Ordaz argued that the fact of his prior conviction s h o u ld have been submitted to the jury. The Court, while acknowledging some tension b e tw e e n Almendarez-Torres and subsequent Supreme Court cases, nevertheless held that A lm en d a re z -T o rre s remains good law: O rd a z argues that because of the decision in B la k e ly, "it is clear that Almendarez-Torres cannot s ta n d ." . . . However, the Supreme Court has made c le a r that "if a precedent of this Court has direct a p p lic a tio n in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court o f Appeals should follow the case which directly c o n tro ls , leaving to this Court the prerogative of o v e rru lin g its own decisions." Rodriguez de Quijas v . Shearson/American Express, Inc., 490 U.S. 477, 4 8 4 , 104 L. Ed. 2d 526, 109 S. Ct. 1917 (1989); see a lso Agostini v. Felton, 521 U.S. 203, 237, 138 L.
E d . 2d 391, 117 S. Ct. 1997 (1997).
....
[A]s an inferior federal court we have the respo n sib ility to follow directly applicable Supreme C o u rt decisions. . . .
T h e holding in Almendarez-Torres remains b in d in g law, and nothing in Blakely or Booker h o ld s otherwise.
O rd a z , 398 F.3d at 240-241. O rd a z was decided just weeks prior to the Supreme Court's decision in Shepard, w h ic h Rivera claims casts additional doubt on Almendarez-Torres. In United States v. C o lem an , 451 F.3d 154 (3d Cir. 2006), this Court considered the impact, if any, of Shepard u p o n the rule set forth in Almendarez-Torres. Coleman was convicted of several firearm p o s s e ss io n violations. At sentencing, the district court determined that Coleman had five p rio r convictions, and thus qualified as an armed career criminal under 18U.S.C. § 924(e).
T h is increased the statutory minimum for his firearm possession offenses to at least 15 ye a rs in prison.
On appeal, Coleman argued that, because his prior convictions increased the s ta tu to ry minimum penalty, those offenses should have been charged in the indictment and p r o v e d to the jury beyond a reasonable doubt, and that the government's failure to do so v io la te d the Sixth Amendment. He asserted that Almendarez-Torres had been eviscerated b y Shepard's holding limiting the sources a sentencing court could rely upon to determine w h e th e r a previous burglary is "generic" for the purposes of enhancing a sentence based u p o n the prior conviction. This court rejected the argument that Shepard had implicitly o v e r ru l e d Almendarez-Torres: T h e various opinions in Shepard appear to agree on o n e thing: the door is open for the Court one day to lim it or overrule Almendarez-Torres. But that day h a s not yet come, and we are well aware of the S u p r e m e Court's admonition that "if a precedent of th e Supreme Court has direct application in a case, ye t appears to rest on reasons rejected in some other lin e of decisions, the Court of Appeals should f o llo w the case which directly controls, leaving to th e Supreme Court the prerogative of overruling its o w n decisions." [United States v.] Francisco, 165 F e d . Appx 144, 148 (3d Cir. 2006) (quoting A g o stin i v. Felton, 521 U.S. 203, 237, 117 S. Ct.
1 9 9 7 , 138 L. Ed. 2d 391 (1997)). Therefore, we h o ld that Shepard did not affect the continuing v a l id i ty of Almendarez-Torres.
C o le m a n , 451 at 161. Several other Circuits have held likewise. See, e.g., United States v. C h ild s, 403 F.3d 970, 972 (8th Cir. 2005); United States v. Schlifer, 403 F.3d 849, 852 (7th C ir. 2005); United States v. Moore, 401 F.3d 1220, 1224 (10th Cir. 2005).
Because Almendarez-Torres remains good law, the district court properly found the f a c ts of Rivera's prior convictions and a corresponding criminal history category of VI.
This finding, together with the unchallenged offense level of 11, resulted in a guidelines ra n g e of 27 to 33 months. The district court's sentence of 27 months the very bottom of th e range was not improper.
III.
R iv e ra 's argument also fails for an entirely independent reason. The remedial p o rtio n of Booker demonstrates that judicial fact-finding by the preponderance of the e v id e n c e standard is unconstitutional only in the context of a mandatory sentencing regime.
United States v. Miller, 417 F.3d 358, 362-63 (3d Cir. 2005); United States v. A n to n a k o p o u lo s , 399 F.3d 68, 75 (1st Cir. 2005); United States v. Crosby, 397 F.3d 103, 1 1 2 (2d Cir. 2005); United States v. Dalton, 409 F.3d 1247, 1252 (10th Cir. 2005). In other w o rd s, the Sixth Amendment is not violated simply because a judge finds sentencing facts u n d e r the guidelines; rather, to trigger constitutional error, the judge must do so pursuant to a mandatory guidelines system. Where, as here, such judicial fact-finding occurs in an a d v is o ry guidelines scheme and is within the statutory range, it raises no Sixth Amendment is s u e s. Antonakopoulos, 399 F.3d at 75 ("The error is not that a judge (by a preponderance o f the evidence) determined facts under the Guidelines which increased a sentence beyond th a t authorized by the jury verdict or an admission by the defendant; the error is only that th e judge did so in a mandatory Guidelines system."). Here, there is no dispute that the d is tric t court sentenced Rivera under an advisory guidelines system, and the final sentence w a s reasonable and within the statutory maximum.
IV.
T h e December 2, 2005 order of the district court sentencing Rivera to 27 months im p ris o n m e n t will be affirmed.
* The Honorable Louis H. Pollak, Senior District Judge for the Eastern District of P e n n s ylv a n ia , sitting by designation.
1 The specific facts of Rivera's receipt of drugs during this visit are somewhat u n u su a l. According to the Presentence Investigation Report ("PSR"), Rivera and his g u e st were eating "Dorito" tortilla chips, each from an individual bag. A prison employee n o tice d the visitor hold his Dorito bag up to his mouth and tilt his head forward; Rivera th e n picked up the same bag, tilted his head back, and poured its contents into his mouth. Suspicious, prison staff isolated Rivera, who eventually passed a balloon containing a s u b s ta n c e later identified as cocaine and/or codeine. instant offense while under any criminal justice s e n te n c e, including probation, parole, supervised re le a se , imprisonment, work release, or escape s ta tu s . (e ) Add 2 points if the defendant committed the i n s ta n t offense less than two years after release f ro m imprisonment on a sentence counted under (a ) or (b) or while in imprisonment or escape s ta tu s on such a sentence. If 2 points are added for ite m (d), add only 1 point for this item. (f ) Add 1 point for each prior sentence resulting f ro m a conviction of a crime of violence that did n o t receive any points under(a), (b), or (c) above b e c a u se such sentence was considered related to a n o th e r sentence resulting from a conviction of a c rim e of violence, up to a total of 3 points for this ite m . Provided, that this item does not apply w h e re the sentences are considered related b e c a u s e the offenses occurred on the same o c c as io n .
4 Rivera does not here challenge the criminal history points attributable to the c o n v ic tio n he was then serving nor those that result because the instant criminal conduct o c c u rr e d while he was imprisoned.
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This document cites
- U.S. Court of Appeals for the Seventh Circuit - United States of America, Plaintiff-Appellee, v. James T. Schlifer, Defendant-Appellant., 403 F.3d 849 (7th Cir. 2005)
- U.S. Court of Appeals for the Tenth Circuit - United States of America, Plaintiff-Appellee, v. Gary Dean Moore, Defendant-Appellant., 401 F.3d 1220 (10th Cir. 2005)
- U.S. Court of Appeals for the Tenth Circuit - United States of America, Plaintiff-Appellee, v. Louie Anthony Dalton, Defendant-Appellant., 409 F.3d 1247 (10th Cir. 2005)
- U.S. Court of Appeals for the Eighth Circuit - United States of America, Appellee, v. Moses Childs, Jr., Appellant., 403 F.3d 970 (8th Cir. 2005)
- U.S. Supreme Court - Almendarez-Torres v. United States, 523 U.S. 224 (1998)
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