United States v. Concepcion ( 2005 )


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  •                                                                                                                            Opinions of the United
    2005 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    10-31-2005
    USA v. Concepcion
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 03-2422
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    Recommended Citation
    "USA v. Concepcion" (2005). 2005 Decisions. Paper 317.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2005/317
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ____________
    No. 03-2422
    ____________
    UNITED STATES OF AMERICA
    v.
    ALEXIS CONCEPCION,
    Appellant
    ____________
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. No. 02-cr-00488)
    District Judge: Honorable Ronald L. Buckwalter
    ____________
    Submitted Under Third Circuit LAR 34.1(a)
    October 27, 2005
    Before: SLOVITER, FISHER and GREENBERG, Circuit Judges.
    (Filed: October 31, 2005)
    ____________
    OPINION OF THE COURT
    ____________
    FISHER, Circuit Judge.
    I.
    Appellant Alexis Concepcion challenges the legality of his sentence under United
    States v. Booker, 
    125 S. Ct. 738
     (2005). Because our decision in United States v. Davis,
    
    407 F.3d 162
     (3d Cir. 2005), controls this case, we will vacate Appellant’s sentence and
    remand to the District Court for resentencing.
    II.
    As we write only for the parties, who are familiar with the underlying facts, we
    shall set out only those facts necessary to our analysis. On January 6, 2003, Appellant
    pled guilty to a four-count indictment charging the following crimes: possession with
    intent to distribute cocaine base, possession of a firearm in furtherance of a drug
    trafficking crime, possession of a firearm by a convicted felon, and possession of
    ammunition by a convicted felon.
    On January 4, 2005, Appellant’s attorney moved to withdraw from the case, and on
    January 18, 2005, the attorney filed an Anders brief, see Anders v. California, 
    386 U.S. 738
     (1967), stating that upon review of the case he could identify no non-frivolous
    grounds for appeal.1 On March 11, 2005, Appellant was given thirty days to file an
    1
    We deem it worthy of note that Booker was argued on October 4, 2004, and the
    decision was issued on January 12, 2005, a full week before counsel submitted his Anders
    brief in this case. The decision was reported widely in the news media. Although it is
    possible that the brief had been completed before January 12, we are still somewhat
    troubled by counsel’s conclusion that a challenge to the legality of the sentence would be
    frivolous because “[t]he district court lacked the authority to impose a lower sentence”
    than the mandated Guidelines range. (App. Br. at 13.) To be sure, as of January 18, we
    had not yet decided Davis, and thus had not yet applied Booker to pending appeals in this
    Circuit. Nonetheless, on January 18, Booker was the law, and Blakely v. Washington, 
    542 U.S. 296
     (2004), had been the law for almost six months, during which time several
    Courts of Appeals had held its ruling to apply in at least some respects to the Federal
    Sentencing Guidelines. See, e.g., United States v. Ameline, 
    376 F.3d 967
     (9th Cir. 2004);
    United States v. Booker, 
    375 F.3d 508
     (7th Cir. 2004). We have held that in filing an
    2
    informal pro se brief, and on March 24, 2005, Appellant filed an informal brief
    challenging the legality of his sentence under Booker.
    III.
    In Davis, this Court decided to remand for resentencing all cases pending on direct
    review when Booker was decided in which the defendant was sentenced under the
    mandatory Guidelines regime. Davis, 
    407 F.3d 162
     at 165. We explained that
    [b]ecause the sentencing calculus was governed by a Guidelines framework
    erroneously believed to be mandatory, the outcome of each sentencing
    hearing conducted under this framework was necessarily affected. Although
    plain error jurisprudence generally places the burden on an appellant to
    demonstrate specific prejudice flowing from the District Court’s error, in
    this context – where mandatory sentencing was governed by an erroneous
    scheme – prejudice can be presumed.
    
    Id.
    Appellant was sentenced under the mandatory Guidelines regime, and he did not
    waive his right to appeal the legality of his sentence. Cf. United States v. Lockett, 
    406 F.3d 207
    , 212-14 (3d Cir. 2005) (holding that a defendant who executed an appellate
    waiver as part of his plea agreement is not entitled to resentencing in light of Booker).
    The District Court advised Appellant of his appellate rights as follows:
    Anders brief, counsel attests that he has “thoroughly scoured the record in search of
    appealable issues.” United States v. Marvin, 
    211 F.3d 778
    , 780 (3d Cir. 2000). We think
    it not outside the range of reasonably competent representation for counsel to have
    recognized that Booker might well create non-frivolous issues for appeal in this case. We
    do not expect clairvoyance about future changes in the law, merely timely recognition of
    those changes that have occurred before a brief is filed.
    3
    I also remind you that when you enter a plea of guilty like you have done
    here today, the only direct appeal rights you have are from the validity of
    this proceeding that is going on right now, this entering of the plea, and the
    legality of the sentence that I impose.
    Plea Hearing Tr. at 17, Jan. 6, 2003. Because Appellant’s appeal is not barred under
    Lockett, we are bound under Davis to remand for resentencing. Accordingly, we will
    vacate Appellant’s sentence and remand for resentencing in light of Booker.
    4