United States v. Francisco

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
1-24-2006
USA v. Francisco
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1105
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-1105
UNITED STATES OF AMERICA
v.
EDDY ANTONIO FRANCISCO
a/k/a
EDDIE VENTURA
a/k/a
JOSE VENTURE
a/k/a
RAFAEL CHAPMAN
a/k/a
EDDIE VENTURE
Eddy Antonio Francisco,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 04-cr-00352)
District Judge: Honorable John R. Padova
Submitted Under Third Circuit LAR 34.1(a)
January 12, 2006
Before: BARRY, AMBRO and ALDISERT, Circuit Judges
(Filed: January 24, 2006)
OPINION
AMBRO, Circuit Judge
Eddy Antonio Francisco appeals from a judgment of conviction and sentence
entered by the United States District Court for the Eastern District of Pennsylvania. He
contends that the District Court erred in relying on his previous convictions, which were
not alleged in the indictment nor proved beyond a reasonable doubt, in calculating the
range of imprisonment under the Sentencing Guidelines. He also seeks a remand to allow
the District Court to reconsider his sentence in light of United States v. Booker, __ U.S.
__, 125 S. Ct. 738 (2005). For the reasons that follow, we hold that the District Court did
not err in relying upon Francisco’s prior convictions in calculating his Guidelines range.
Nonetheless, because the District Court applied the Guidelines as if they were mandatory,
we grant the motion to remand. See United States v. Davis, 407 F.3d 162, 165 (3d Cir.
2005).
I.
Francisco, a citizen of the Dominican Republic, was removed from the United
States in February 2002, after having been convicted in the State of New York of several
controlled substance offenses. In January 2004, federal authorities located Francisco in
the Eastern District of Pennsylvania and charged him with unlawful reentry after
deportation in violation of 8 U.S.C. § 1326(a) and (b)(2). Although the Government
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included with the indictment a notice of a prior conviction detailing Francisco’s past
controlled substance convictions, the District Court held that prior convictions were not
an element of the offense and granted Francisco’s motion to strike the notice. Francisco
pled guilty to unlawful reentry and proceeded to sentencing. He did not admit to any
prior convictions and challenged the Court’s authority to sentence him based on facts not
found by a jury. The District Court rejected this argument, calculated the base offense
level as eight, but increased this level to twenty-four based on Francisco’s prior
convictions. The Court then decreased the offense level to twenty-one to reflect
acceptance of responsibility and sentenced Francisco to eighty months in prison, well
within the Guidelines range and the statutory maximum.1
Francisco contends that the District Court erred by enhancing his sentence on the
basis of his prior convictions, which were neither admitted to by him nor established by
the trier of fact beyond a reasonable doubt.2 He concedes that this issue is controlled by
1
The statutory maximum for Francisco’s base offense — unlawful reentry — is
two years in prison, see 8 U.S.C. § 1326(a), but upon a showing that the defendant had a
prior conviction for an aggravated felony (such as Francisco’s controlled substance
convictions) the statutory maximum rises to twenty years in prison. See 8 U.S.C.
§ 1326(b).
2
We note that, because the prior convictions increased the statutory maximum for
Francisco’s offense, see note 1 supra, this issue must be resolved even though we grant
Francisco’s unopposed motion for a generic Booker remand. Vacating Francisco’s
sentence and remanding for resentencing under a non-mandatory Guidelines regime
would not remedy the error alleged here because the District Court cannot impose a
sentence in excess of the appropriate statutory maximum. See Apprendi v. New Jersey,
530 U.S. 466, 481 (2000) (noting that a sentence must be “within the range prescribed by
statute” and a sentencing judge’s discretion is therefore “bound by the range of
3
Almendarez-Torres v. United States, 523 U.S. 224 (1998), which held that prior
convictions that serve to increase the statutory maximum for an offense are not elements
of the offense and therefore may be established by the sentencing judge by a
preponderance of the evidence. See id. at 243 (“[R]ecidivism . . . is a traditional, if not
the most traditional, basis for a sentencing court’s increasing an offender’s sentence.”).
Francisco argues, however, that Almendarez-Torres is no longer good law after Booker
and the Supreme Court’s recent decision in Shepard v. United States, __ U.S. __, 125 S.
Ct. 1254 (2005), or, at least, has been sufficiently called into question to justify our
limiting Almendarez-Torres to its facts.
II.
The District Court had proper subject matter jurisdiction over this case under 18
U.S.C. § 3231. We have jurisdiction to review the calculation of Francisco’s sentence
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. The applicability and continued
vitality of a Supreme Court precedent is a pure question of law subject to plenary review
on appeal. See, e.g., United States v. Barbosa, 271 F.3d 438, 452 (3d Cir. 2001).
sentencing options prescribed by the legislature” (emphasis omitted)); U.S.S.G. § 5G1.1
(stating that the Guidelines are inapplicable if the minimum sentence recommended by
the Guidelines is higher than the statutory maximum, or if the maximum sentence
recommended by the Guidelines is lower than the statutory minimum). We must,
therefore, determine whether the District Court applied the correct statutory maximum
before we can remand for resentencing under the non-mandatory Guidelines.
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III.
At the outset, we point out that we recently held that Almendarez-Torres remains
good law despite the Supreme Court’s holding in Booker. In United States v. Ordaz, we
noted “a tension between the spirit of Blakely[ v. Washington, 542 U.S. 296 (2004),] and
Booker that all facts that increase the sentence should be found by a jury and the Court’s
decision in Almendarez-Torres, which upholds sentences based on facts found by judges
rather than juries.” 398 F.3d 236, 241 (3d Cir. 2005). Nonetheless, we held that “[t]he
holding in Almendarez-Torres remains binding law, and nothing in Blakely or Booker
holds otherwise.” Id. Francisco counters that although the Supreme Court has never
expressly overruled Almendarez-Torres, the holding has been called into question by
Apprendi v. New Jersey, 530 U.S. 466 (2000), and Shepard, the latter decided two weeks
after our ruling in Ordaz. Thus, Francisco invites us to hold that Almendarez-Torres is
limited to its facts and is not applicable to his Sixth Amendment challenge. We are
unpersuaded by this argument.
We find nothing in Apprendi or Shepard that would justify a conclusion that the
Supreme Court has effectively limited Almendarez-Torres. In Apprendi, which held that
factors that increase the statutory maximum for a crime must be found by a jury beyond a
reasonable doubt, the Court expressly preserved the Almendarez-Torres exception for
prior convictions. See Apprendi, 530 U.S. at 490 (“Other 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 beyond a reasonable doubt.” (emphasis
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added)).
In Shepard, the Court held that in determining whether prior burglary convictions
entered after guilty pleas were “generic” (and thus “violent felon[ies]” mandating a
fifteen-year minimum sentence under the Armed Career Criminal Act, 18 U.S.C. §
924(e), for felons who illegally possess firearms), a sentencing court could not look to
police reports or complaint applications but rather had to rely on charging documents,
elements of offenses, plea colloquies, and express findings by the trial judge. Shepard,
125 S. Ct. at 1261, 1263; see also Taylor v. United States, 495 U.S. 575, 602 (1990)
(holding that a sentencing court may consider statutory elements, charging documents,
and jury instructions in determining whether prior convictions after trial were for
“generic” burglary). A plurality of the Court noted that in a state where the statutory
definition of burglary was limited to the elements of “generic” burglary, “a judicial
finding of a disputed prior conviction is made on the authority of Almendarez-Torres.”
Shepard, 125 S. Ct. at 1262. The plurality contrasted this to states where the statutory
definition of burglary encompassed more than the “generic” offense, such that relying on
police reports or complaint applications — as opposed to charging documents, jury
instructions, plea colloquies, or express findings of fact by the trial judge — would be
“too far removed from the conclusive significance of a prior judicial record, and too much
like the findings subject to Jones[ v. United States, 526 U.S. 227 (1999)] and Apprendi, to
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say that Almendarez-Torres clearly authorizes a judge to resolve the dispute.” Id.3
To be sure, Justice O’Connor’s dissent in Shepard, joined by Justices Kennedy and
Breyer, worried that “today’s decision reads Apprendi to cast a shadow possibly
implicating recidivism determinations, which until now had been safe from such
formalism.” Shepard, 125 S. Ct. at 1269 (O’Connor, J., dissenting). Justice Thomas, who
expressed his dissatisfaction with the Almendarez-Torres exception in his concurring
opinion in Apprendi, see 530 U.S. at 520-21 (Thomas, J., concurring), repeated his view
that “Almendarez-Torres . . . has been eroded by this Court’s subsequent Sixth
Amendment jurisprudence, and a majority of the Court now recognizes that Almendarez-
Torres was wrongly decided. The parties do not request it here, but in an appropriate
case, this Court should consider Almendarez-Torres’ continuing viability. ” Shepard, 125
S. Ct. at 1264 (Thomas, J., concurring) (internal citations omitted). The plurality, for its
part, did not rise to the defense of Almendarez-Torres, but merely noted that “[i]t is up to
the future to show whether the dissent is good prophesy” with regard to the continuing
viability of Almendarez-Torres. Id. at 1263 n.5.
The various opinions in Shepard appear to agree on one thing: the door is open for
the Court one day to limit or overrule Almendarez-Torres. But that day has not yet come,
3
In any event, we note that Shepard is not applicable to Francisco’s sentence. In
determining whether Francisco had prior convictions, the District Court relied solely on
the prior record of convictions from the Bronx County Superior Court. There was also no
dispute that the controlled substance offenses of which Francisco was convicted were, on
their face, aggravated felonies.
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and we are well aware of the Supreme Court’s admonition that “‘[i]f a precedent of [the
Supreme] Court has direct application in a case, yet appears to rest on reasons rejected in
some other line of decisions, the Court of Appeals should follow the case which directly
controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions.’”
Agostini v. Felton, 521 U.S. 203, 237 (1997) (quoting Rodriguez de Quijas v.
Shearson/American Express, Inc., 490 U.S. 477, 484 (1989)); see Ordaz, 398 F.3d at 241
(same). We therefore agree with the other Circuit Courts that have concluded that
Shepard did not affect the continuing validity of Almendarez-Torres. See, e.g., United
States v. Childs, 403 F.3d 970, 972 (8th Cir. 2005); United States v. Schlifer, 403 F.3d
849, 852 (7th Cir. 2005); United States v. Moore, 401 F.3d 1220, 1224 (10th Cir. 2005).
IV.
We hold that the District Court did not err in relying on Francisco’s record of prior
convictions for aggravated felonies at sentencing. Under Almendarez-Torres, which
remains binding law until the Supreme Court tells us otherwise, such facts need not be
admitted by the defendant nor established by a jury beyond a reasonable doubt. Because
the District Court relied on the Sentencing Guidelines as a mandate, however, we grant
Francisco’s unopposed motion for a remand in light of Booker, vacate the sentence, and
remand to the District Court for resentencing pursuant to United States v. Davis, 407 F.3d
162, 165 (3d Cir. 2005).
8