                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-25-2003

USA v. Reeves
Precedential or Non-Precedential: Non-Precedential

Docket 01-3586




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Recommended Citation
"USA v. Reeves" (2003). 2003 Decisions. Paper 623.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/623


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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 01-3586




                          UNITED STATES OF AMERICA

                                           v.

                           CLIFTON ANTHONY REEVES,
                                              Appellant




                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                            D.C. Criminal No. 01-cr-00178
                            (Honorable Harvey Bartle, III)




                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 February 27, 2003
           Before: SCIRICA, GREENBERG and GIBSON*, Circuit Judges

                                (Filed: April 25, 2003)




                              OPINION OF THE COURT




   *The Honorable John R. Gibson, United States Circuit Judge for the Eighth Judicial
Circuit, sitting by designation.
SCIRICA, Circuit Judge.

       Defendant, Clifton A. Reeves, appeals the sentence imposed against him for

“brandishing” a firearm in relation to a crime of violence under 18 U.S.C. § 924(c)(1)(A).

We will affirm.

                                              I.

       The District Court sentenced Reeves to a term of five years for aiding and abetting

the brandishing of a firearm during a crime of violence in violation of 18 U.S.C. §

924(c)(1)(A)(ii).1 Citing Apprendi v. New Jersey, 530 U.S. 466 (2000), Reeves argues for

the first time on appeal2 that he is entitled to a fact finding hearing on whether he

brandished a gun, contending brandishing is an element of the offense that must be

alleged in the indictment and proved beyond a reasonable doubt. See Apprendi, 530 U.S.

466 at 491-492 (holding any fact other than prior conviction must be submitted to jury

and proved beyond reasonable doubt if it increases criminal penalty beyond prescribed

statutory maximum). Although he admittedly drove the getaway car, Reeves maintains he

did not brandish a gun during two armed robberies committed by his co-defendants. But

Reeves has misconceived the nature of the violation. See United States v. Price, 76 F.3d

   1
    In total, the District Court sentenced Reeves to twenty-six years imprisonment,
restitution in the amount of $162,130.00 and five years supervised release on five
separate counts stemming from two armed robberies Reeves committed with up to three
co-conspirators.
   2
    Because Reeves did not object at the sentencing hearing, we review his appeal for
plain error. See F ED. R. C RIM . P. 52(b); United States v. Vazquez, 271 F.3d 93, 100 (3d
Cir. 2001) (en banc).

                                              2
526, 529 (3d Cir. 1996) (holding that person who aids and abets use of firearm in crime of

violence is punishable as principal actor under 18 U.S.C. § 924(c)). Accordingly, his

argument lacks merit.

       Furthermore, the government specifically alleged brandishing as an element of the

charges against him in the indictment. The District Court explained the elements of the

brandishing charge and the theory of aiding and abetting to Reeves at his plea colloquy.

Thus, we see no error in the Rule 11 plea colloquy. See F ED. R. C RIM . P. 11(c) (providing

that district court must address defendant and determine that he understands, inter alia,

“nature of the charge to which the plea is offered”).

       Nonetheless, since Reeves’s guilty plea, the Supreme Court has addressed whether

brandishing is an element of 18 U.S.C. § 924(c)(1)(A) that the prosecution must prove

beyond a reasonable doubt. In Harris v. United States, 122 S.Ct 2406, 2420 (2002), the

Supreme Court held that “brandishing” a firearm is an aggravating factor to be considered

at sentencing, not an element of the crime of carrying a firearm under 18 U.S.C. §

924(c)(1)(A).3 Brandishing, therefore, does not implicate the defendant’s right to an

indictment, trial, or conviction upon proof of each element of the crime beyond a

reasonable doubt. Id. at 2414.




   3
    Harris applies to this appeal. See Brecht v. Abrahamson, 507 U.S. 619, 634 (1993)
(recognizing that new rules “always have retrospective application to criminal cases on
direct review”).

                                             3
                                            II.

      For the foregoing reasons, there is no error, let alone plain error. The judgment of

conviction and sentence will be affirmed.




                                            4
TO THE CLERK:

         Please file the foregoing opinion.




                                              /s/ Anthony J. Scirica
                                                     Circuit Judge




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