United States v. Istreffi ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
3-2-2006
USA v. Istreffi
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1149
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"USA v. Istreffi" (2006). 2006 Decisions. Paper 1490.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-1149
UNITED STATES OF AMERICA,
v.
FAIK MUSA ISTREFFI,
Appellant.
Appeal from the United States District Court
for the Middle District of Pennsylvania
(Criminal No. 01-cr-00303-01)
(Honorable James M. Munley, District Judge)
Submitted pursuant to Third Circuit L.A.R. 34.1(a)
January 19, 2006
Before: McKEE, VAN ANTWERPEN, and SILER,* Circuit Judges.
(Filed: March 2, 2006)
OPINION OF THE COURT
*
The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge, United States
Court of Appeals for the Sixth Circuit, sitting by designation.
PER CURIAM.
Defendant Faik Istreffi appeals his sentence on the basis that the district court found
facts in violation of his Sixth Amendment rights and that his sentence was imposed in
misapprehension that the sentencing guidelines were mandatory. We find no Sixth
Amendment violation, but vacate the sentence and remand for re-sentencing in accordance
with United States v. Booker, 543 U.S. 220, 264 (2005).
I.
Istreffi was indicted on a violation of the Racketeer Influence in Corrupt Organization
(“RICO”) act, 18 U.S.C. § 1962(d), for activities related to trafficking in contraband such as
cocaine and stolen vehicles, and a second count under 21 U.S.C. § 846 for conspiracy to
distribute in excess of five kilograms of cocaine. He was also indicted on one count of
committing access device fraud under 18 U.S.C. § 1029(b)(2); one count of conspiracy to
traffic in stolen vehicles and to commit mail fraud under 18 U.S.C. § 371; forty-nine counts
of mail fraud under 18 U.S.C. § 1341 for filing fraudulent title applications; and one count
of money laundering conspiracy under 18 U.S.C. § 1956(h).
Istreffi changed his plea to guilty to all counts except one in February 2003 in the
middle of his trial. At the sentencing hearing held in January 2004, the district court inquired
into whether Istreffi had reviewed the Presentence Report (“PSR”), and his attorney affirmed
that they had and that any objections they had were withdrawn. The court then found that
this case did not qualify for a downward departure and imposed a 168-month sentence, which
is the lowest suggested by the PSR.
II.
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We review issues not raised before the district court for plain error. See United States
v. Vasquez, 271 F.3d 93, 99 (3d Cir. 2001) (en banc). An error is plain if it is contrary to law
at the time the error was made. Johnson v. United States, 520 U.S. 461, 466-67 (1997).
A.
Istreffi contends that his sentence was imposed in reliance on certain facts that he
never admitted nor were found by a jury beyond a reasonable doubt. The only material facts
from the PSR Istreffi identifies were his possession of a gun and the amount of cocaine for
which he was liable. The Sixth Amendment requires that “any fact (other than a prior
conviction) which is necessary to support a sentence exceeding the maximum authorized by
the facts established by a plea of guilty or a jury verdict must be admitted by the defendant
or proved to a jury beyond a reasonable doubt.” Booker, 543 U.S. at 244 (citing Apprendi
v. New Jersey, 530 U.S. 466, 490 (2000)). Thus, there is no Sixth Amendment violation
where the defendant admitted the fact in question or if the sentence is within the statutory
range justified by the facts admitted or found by a jury. Id. at 233 (holding that under
advisory but not mandatory guidelines, “the selection of particular sentences in response to
differing sets of facts . . . would not implicate the Sixth Amendment.”). Here, Istreffi’s
sentence fell within the statutory range for convictions of non-specified quantities of cocaine
and Istreffi admitted the facts in the PSR upon which the district court based its sentence.
In United States v. Williams, 235 F.3d 858 (3d Cir. 2000), we addressed a similar
case to the one before us. The district court sentenced defendant to 86 months in prison, after
finding that defendant was liable for more heroin than the amount specified in the indictment.
Id. at 860. The defendant complained that it was violative of his Sixth Amendment rights
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to be held liable for more heroin than the amount he admitted to in the indictment, for which
the sentence was capped at twenty years. Id. Affirming, we held that the issue was not
whether the challenged judicial fact finding exposed the defendant to a higher sentence, but
rather that the sentence imposed exceeded the statutory maximum. Id. at 863 (“a district
court’s sentence that is under the statutory maximum cannot be constitutionally objectionable
under Apprendi.”). Here, even if Istreffi only pled to possessing an unspecified amount of
cocaine, he would have been eligible for a sentence of up to twenty years. See 21 U.S.C. §
841(C) (“In the case of a controlled substance in schedule I or II [cocaine] . . . such person
shall be sentenced to a term of imprisonment of not more than 20 years . . . .”). Though the
district court’s finding may have increased the guidelines range, it is merely “relevant
conduct” under USSG § 1B1.3, and does not implicate the Sixth Amendment. See Williams,
235 F.3d at 864. Therefore, there is no Sixth Amendment violation because Istreffi’s
sentence of 168 months is well below the statutory maximum.
Furthermore, Istreffi admitted the amount of cocaine during the sentencing phase. For
sentencing purposes, the district court is permitted to accept any undisputed fact in the PSR
as conclusive. See FED. R. CRIM. P. 32(i)(3)(A). The PSR stated that Istreffi had trafficked
in “over five kilograms of cocaine,” and as much as “28 kilograms of cocaine.” In the
calculation of the base offense level, it stated that Istreffi was liable for “15 to 50 kilograms
of cocaine.” The PSR also laid out the government’s bases for the allegations and the
evidence it planned to present to prove the charges. Istreffi filed no written objections as was
his right under FED. R. CRIM. P. 32(f), nor did he make any oral objections to the drug
amount. In fact, he expressly withdrew all objections he might have had. Therefore, the
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district court’s finding of drug quantity was not plain error. See United States v. Buckland,
289 F.3d 558, 569-70 (9th Cir. 2005) (holding that district court’s finding of drug quantity
pursuant to defendant’s admission to amount in PSR was not plain error).
B.
In United States v. Davis, 407 F.3d 162, 165-66 (3d Cir. 2005) (en banc), we held that
under Booker it is plain error for a district court to sentence a defendant under the mistaken
belief that the Federal Sentencing Guidelines were mandatory. Both Istreffi and the
government agree that, per Davis, the sentence should be vacated and the case remanded for
re-sentencing.
For the forgoing reasons, we AFFIRM the conviction, but VACATE and REMAND
for re-sentencing consistent with Booker.
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