United States v. Ewell

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
9-9-2008
USA v. Ewell
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3025
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"USA v. Ewell" (2008). 2008 Decisions. Paper 555.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 07-3025
UNITED STATES OF AMERICA
v.
CARLTON EWELL,
Appellant
Case No: 07-3095
UNITED STATES OF AMERICA
v.
JACOB S. ADAMS, JR.,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
District Court Nos. 00-CR-697-1; 00-CR-697-2
District Judge: The Honorable Garrett E. Brown, Jr.
Submitted pursuant to Third Circuit L.A.R. 34.1(a)
September 9, 2008
Before: SCIRICA, Chief Judge, MCKEE, and SMITH, Circuit Judges
Filed: September 9, 2008
OPINION
SMITH, Circuit Judge.
Appellants Carlton Ewell (“Ewell”) and Jacob Adams (“Adams”), along with an
accomplice, robbed four banks between October of 1995 and October of 1996. On
November 27, 2002, a jury found Ewell guilty of four counts of bank robbery, in violation
of 18 U.S.C. § 2113, and four counts of use of a firearm during the commission of a
crime of violence, in violation of 18 U.S.C. § 924(c). The jury found Adams guilty of
three counts of the same two crimes. On April 7, 2003, the District Court sentenced
Ewell to 910 months of incarceration and sentenced Adams to 610 months of
incarceration. On July 10, 2006, this Court affirmed both convictions and remanded their
cases to the District Court for resentencing pursuant to United States v. Booker, 543 U.S.
220 (2005). On June 29, 2007, the District Court conducted a sentencing hearing and
sentenced Ewell and Adams to the same terms of incarceration he had previously
imposed. These timely appeals followed.1
On appeal, both Ewell and Adams argue that the District Court’s imposition of the
applicable statutory mandatory minimum sentence was unconstitutional because the much
shorter sentence contemplated by the Sentencing Guidelines, absent the statutory
minimum, was sufficient to meet the sentencing goals of 18 U.S.C. 3553(a).2 Both
1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court
possesses jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. See United States v.
Cooper, 437 F.3d 324, 327-28 (3d Cir. 2006).
2
We exercise plenary review over the District Court’s interpretation of the law.
Gibbs v. Cross, 160 F.3d 962, 964 (3d Cir. 1998).
2
Appellants concede that this Court has upheld the constitutionality of mandatory
minimum sentences in United States v. MacEwan, 445 F.3d 237 (3d Cir. 2006), and
United States v. Walker, 473 F.3d 71 (3d Cir. 2006). Nonetheless, they contend that this
Court should reverse course because the underlying evidence the government submitted at
trial to prove they used a gun during their bank robberies is suspect. Such an argument is
immaterial to the purposes of sentencing and should have been raised as a sufficiency
challenge to the Appellants’ convictions. As such, our decisions in MacEwan and Walker
foreclose this argument.
Ewell also argues that the District Court committed plain error by failing to
consider evidence of his post-conviction rehabilitation. Pursuant to our decision in
United States v. Lloyd, 469 F.3d 319 (3d Cir. 2006), district courts possess the authority
to reject consideration of post-sentencing rehabilitation. Indeed, Ewell’s attorney
admitted as much at resentencing, noting that it was “permissible” for the District Court
to choose to ignore Ewell’s post-conviction rehabilitation. Given such an admission, the
doctrine of invited error may very well foreclose Ewell from raising this claim on appeal.
Regardless, Ewell’s argument fails because the District Court’s refusal to consider his
post-conviction rehabilitation efforts was not error, plain or otherwise, given our decision
in Lloyd.
Finally, Adams argues that the District Court committed plain error by sentencing
him “to two 20 year consecutive sentences for [§] 924(c) violations, without having the
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jury determine that the convictions in counts 4 and 8 constituted second or subsequent
convictions.” As the government notes, Adams’ claim “is really that the fact of his first
conviction under section 924(c)-i.e., a prior conviction-was used to enhance his sentence
for his subsequent convictions under section 924(c).” In Apprendi v. New Jersey, 530
U.S. 466 (2000), the Supreme Court held that the fact of a prior conviction need not be
submitted to a jury and established beyond a reasonable doubt. Id. at 490. Similarly, in
Deal v. United States, 508 U.S. 129 (1993), the Court held that where a defendant is
convicted of multiple section 924(c) violations at a single trial, the court should properly
treat the first conviction as a prior conviction—and any other convictions as subsequent
convictions—for purposes of sentencing. Id. at 137. In light of such authority, Adams’
argument fails.
In sum, the District Court did not err in sentencing Appellants Ewell and Adams.
Accordingly, we will affirm both judgments of the District Court.
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