United States v. Jenkins , 164 F. App'x 259 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
1-27-2006
USA v. Jenkins
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2145
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2145
UNITED STATES OF AMERICA
v.
DENNIS JENKINS,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
D.C. Crim. 00-cr-00419-4
District Judge: The Honorable Eduardo C. Robreno
Submitted Under Third Circuit LAR 34.1(a)
January 10, 2006
Before: BARRY and AMBRO, Circuit Judges, and DEBEVOISE,* District Judge
(Opinion Filed: January 27, 2006)
OPINION
*
The Honorable Dickinson R. Debevoise, Senior District Judge, United States District
Court for the District of New Jersey, sitting by designation.
BARRY, Circuit Judge
Appellant Dennis Jenkins was convicted of conspiracy to distribute cocaine base
(“crack”), distributing cocaine base, and distributing cocaine base within 1000 feet of a
public housing facility. At sentencing, the District Court found, by a preponderance of
the evidence, that Jenkins was personally responsible for distributing over fifty grams of
cocaine base, resulting in a base offense level of 32, that was increased to 34 to account
for the distribution within 1000 feet of a public housing facility. The total offense level
of 34, together with Jenkins’ criminal history category of VI, resulted in a Sentencing
Guidelines imprisonment range of 262-327 months. He was sentenced to 262 months.1
Jenkins challenges his sentence under United States v. Booker, 543 U.S. 220(2005) (holding that mandatory enhancement of a maximum sentence under the
sentencing guidelines based on facts neither admitted by the defendant nor found by a
jury violates the Sixth Amendment). Specifically, Jenkins asserts that his Sixth
Amendment rights were violated by the use of judicial fact finding to enhance his
sentence based on the amount of drugs involved.
Jenkins was sentenced before the Supreme Court’s decision in Booker. In United
1
Jenkins had initially been sentenced to 240 months imprisonment on the conviction
for distribution of cocaine base, 262 months imprisonment on the conspiracy conviction,
and 262 months imprisonment on the conviction for distribution near a public housing
facility, all terms to run concurrently. Following a successful appeal of his conspiracy
conviction, see United States v. Phillips, 349 F.3d 138 (3d Cir. 2003), Jenkins was
resentenced by the District Court, which reimposed the 262 month sentence.
2
States v. Davis, 407 F.3d 162 (3d Cir. 2005) (en banc), we adopted a general policy of
vacating sentences entered pursuant to pre-Booker law. See id. at 165. We noted that
“we would be usurping the discretionary power granted to the district courts by Booker if
we were to assume that the district court would have given [defendant] the same sentence
post-Booker.” Id. (quoting United States v. Oliver, 397 F.3d 369, 380 n.3 (6th Cir. 2005))
modifications in original). Accordingly, although we will affirm Jenkins’ conviction, we
will vacate his sentence and remand for resentencing in accordance with Booker.
3