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


8-3-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2510




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 05-2510


                          UNITED STATES OF AMERICA

                                           v.

                           SALAHUDDIN MUHAMMAD,
                                             Appellant
                                ____________

            APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF DELAWARE
                          (D.C. Crim No. 02-cr-00128-1)
                 District Judge: Honorable Joseph J. Farnan, Jr.
                                  ____________

                    Submitted Under Third Circuit L.A.R. 34.1(a)
                                    July 14, 2005
                  Before: SMITH, WEIS and ROTH, Circuit Judges.
                               (Filed: August 3, 2006)
                                   ____________

                                      OPINION




WEIS, Circuit Judge.

             Defendant pleaded guilty to one count of possession of a firearm in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He was sentenced to 110-months


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imprisonment and 36 months of supervised release.

              Defendant fled from United States Marshals who attempted to arrest him for

a state firearm offense. After leading the Marshals on a high-speed chase, he eventually

stopped his car, ran to a retail store where he threw away a gun, and attempted to hide by

crawling into a ceiling space.

              In calculating the sentence applicable under the Guidelines, the District

Court added enhancements for reckless endangerment, use of a firearm, and possession of

a stolen firearm. The District court granted defendant credit for acceptance of

responsibility. The resulting sentencing range was 110 months to 137 months. The

statutory maximum was 120 months.

              The District Court stated that the defendant belonged within the range

calculated and imposed a sentence at the lower end remarking, “I have to take into

consideration in my mind the shooting and the arrest circumstances. And that’s why I

haven’t gone below the 110 months.”

              On appeal, defendant contends that his sentence violates the ex post facto

principles of the Due Process Clause of the Fifth Amendment and the Sixth Amendment

right to trial by jury because the mandatory Guideline range at the time of his offense

would have been 51 to 63 months. He also argues that using the Category V criminal

history level in calculating his sentence violated his right to trial by jury because the prior

conviction exception to the Sixth Amendment, as set out in Almendarez-Torres v. United

States, 523 U.S. 224 (1998), is no longer viable and is likely to be overturned.

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              As defendant implicitly recognizes, the Supreme Court has advised on

numerous occasions that it reserves to itself the right to reverse its holdings, rather than

granting such authority to the courts of appeals. See e.g., Hohn v. United States, 524 U.S.

236, 252-53 (1998) (noting that the Supreme Court’s “decisions remain binding precedent

until [it] see[s] fit to reconsider them...”). The defendant, however, has duly noted his

position in the record here with respect to the asserted Fifth and Sixth Amendment

violations in the event those objections become relevant in the future.

              The defendant’s ex post facto argument is that Booker v. United States, 543

U.S. 220 (2005), expands the punishment that was in effect at the time his crime was

committed by permitting a sentence above the Guideline range. He is arguing, in effect,

that Booker affects him retroactively to his detriment. We rejected this argument in

United States v. Pennavaria, 445 F.3d 720, 723-24 (3d Cir. 2006).

              The basic premise underlying the prohibition on the ex post facto

application of criminal statutes rests on the theory of fair warning – that it is not just to

define conduct as criminal when it was not so regarded at the time the conduct was

committed. Here, the sentence was within the statutory limit of ten years that existed at

the time defendant committed his offense.

              We have reviewed the district judge’s sentence colloquy and are persuaded

that he considered the proper factors in sentencing the defendant.

              Accordingly, the Judgment of the District Court will be affirmed.



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