                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                               NOT PRECEDENTIAL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


                                             2
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.

                                               4
                                            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

                                             5
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




                                             6
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.

                                              7
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).




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