                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-23-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2181




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                                                     NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT
                      ____________

                           No. 05-2181
                          ____________

                UNITED STATES OF AMERICA

                                 v.

                    WALI S. HAMANI a/k/a
                    WALLACE J. CLEMONS


                            Wali Hamani,
                                 Appellant
                          ____________

          On Appeal from the United States District Court
                   for the District of New Jersey
                      (D.C. No. 04-cr-00106)
           District Judge: Honorable Robert B. Kugler
                           ____________

            Submitted Under Third Circuit LAR 34.1(a)
                       February 14, 2006

Before: SCIRICA, Chief Judge, BARRY and FISHER, Circuit Judges.

                     (Filed: March 23, 2006)
                          ____________

                   OPINION OF THE COURT
                        ____________
FISHER, Circuit Judge.

       Wali Hamani pled guilty to one count of bank robbery, in violation of 18 U.S.C.

§ 2113(a), and was sentenced by the District Court to a term of imprisonment of 180

months. The sentence was based, in part, on the District Court’s finding that Hamani

qualified as a career offender under the United States Sentencing Guidelines. Hamani

argues on appeal that this determination must be made by a jury beyond a reasonable

doubt. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and

will affirm.

                                              I.

       On August 28, 2003, Hamani robbed the Fleet National Bank in Egg Harbor

Township, New Jersey. He entered the bank, placed a brown paper bag on the counter,

stated that he had a bomb, and demanded money. When the teller did not respond

immediately, Hamani reached over the counter and grabbed cash totaling $4,571.00, as

well as numerous checks. He was apprehended while fleeing the scene.

       Hamani subsequently pled guilty to bank robbery, an offense that carries a

maximum sentence of twenty years imprisonment. See 18 U.S.C. § 2113(a). In the plea

agreement, the parties stipulated that (1) the Guidelines prescribed a base offense level of

20, (2) Hamani was subject to a two-level increase because he took the property of a

financial institution, and (3) he was entitled to a two- or three-level reduction in his

offense level for acceptance of responsibility. The agreement did not address other



                                               2
enhancements or adjustments under the Guidelines. During the plea colloquy, the District

Court informed Hamani that the plea stipulations were not binding on the court.

       A sentencing hearing was held on April 8, 2005. Over Hamani’s objection, the

District Court found, by a preponderance of the evidence, that he was a “career offender”

under section 4B1.1 of the Guidelines. It noted that Hamani’s prior criminal history

included convictions for robbery and aggravated assault, both of which are considered

“crime[s] of violence” under sections 4B1.1 and 4B1.2, qualifying Hamani as a “career

offender.” 1

       The career offender enhancement increased Hamani’s offense level from 22 to 29,

and his criminal history category from IV to VI. See U.S. Sentencing Guidelines Manual

§ 4B1.1(b). His final Guidelines range of imprisonment was increased from 63 to 78

months to 151 to 188 months.

       The District Court sentenced Hamani to 180 months imprisonment and three years

supervised release. This timely appeal followed.




       1
       Under section 4B1.1, a defendant is subject to the career offender enhancement if:
      (1) the defendant was at least eighteen years old at the time the defendant
      committed the instant offense of conviction; (2) the instant offense of
      conviction is a felony that is either a crime of violence or a controlled
      substance offense; and (3) the defendant has at least two prior felony
      convictions of either a crime of violence or a controlled substance offense.
U.S. Sentencing Guidelines Manual § 4B1.1(a).

                                            3
                                             II.

       Hamani argues on appeal, as he did at sentencing, that the District Court’s finding

that the instant offense and the prior state convictions were “crime[s] of violence”

violated his rights to a jury trial and to proof beyond a reasonable doubt. We disagree.

       The Supreme Court in United States v. Booker, 543 U.S. 220 (2005), rendered the

Guidelines merely advisory by excising two provisions of the Sentencing Reform Act of

1984. We have recognized, in light of Booker, that judicial factfinding under the

Guidelines no longer implicates the right to a jury trial and that the facts underlying

Guidelines enhancements are properly found by the court by a preponderance of the

evidence. See United States v. Cooper, No. 05-1447, 2006 WL 330324, at *4 (3d Cir.

Feb. 14, 2006); see also United States v. Davis, 407 F.3d 162, 163 (3d Cir. 2005). Thus,

the District Court’s determination under the Guidelines that the instant offense and

Hamani’s prior convictions were “crime[s] of violence” did not violate his rights to a jury

trial and to proof beyond a reasonable doubt. Accordingly, we will affirm the judgment

of sentence.2




       2
        Because the rights to a jury trial and to proof beyond a reasonable doubt do not
apply to these facts, we need not address the potential application of the prior-conviction
exception recognized in Almendarez-Torres v. United States, 523 U.S. 224 (1998). In
addition, Hamani does not argue that his sentence was unreasonable, and thus we need
not consider the reasonableness of his sentence.

                                              4
