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


7-11-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1229




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                                                    NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                          No. 04-1229




               UNITED STATES OF AMERICA

                               v.

                     HAROLD MORTON,
                                Appellant




         On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                 (D.C. Crim. No. 01-cr-00320)
              District Judge: Hon. John P. Fullam




           Submitted Under Third Circuit LAR 34.1(a)
                        July 10, 2006

    Before: SLOVITER, McKEE and RENDELL, Circuit Judges

                      (Filed July 11, 2006)




                           OPINION
SLOVITER, Circuit Judge.

       Appellant Harold Morton pled guilty to possession with intent to distribute more

than five grams of cocaine base (crack) in violation of 21 U.S.C. § 841(a)(1) (Count

One); possession with intent to distribute more than five grams of cocaine base (crack)

within 1,000 feet of a school in violation of 21 U.S.C. § 860 (Count Two); carrying a

firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. §

924(c) (Count Five); and being a felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g) (Count Six). The Government filed an information indicating that it would seek

enhanced sentencing on Counts One and Two based on Morton’s prior felony drug

conviction - an offense for which Morton was on parole at the time he committed the

instant offenses.

       The written guilty plea agreement explicitly notified Morton that the mandatory

minimum sentence for Counts One and Two was ten years’ imprisonment and that the

mandatory minimum for Count Five was five years’ imprisonment, to be served

consecutively to any other sentence imposed. The District Court (Fullam, J.) fully

explained the mandatory sentences to Morton at the change of plea hearing. Thereafter,

the District Court found Morton’s guilty plea to be knowing, intelligent and voluntary.

       On November 13, 2003, the Court sentenced Morton to concurrent terms of ten

years’ imprisonment on Counts One, Two, and Six to be followed by the mandatory




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consecutive sentence of five years’ incarceration on Count Five.1 In the course of the

sentencing, the District Court stated that it was sentencing to the minimum required by

statute, but if those mandatory minimums were not in place, the Court would have

sentenced Morton to five or six years’ incarceration.2

       The Government agreed to file a motion under U.S.S.G. § 5K1.1 to permit a

downward departure from the otherwise applicable Guideline range should the

Government in its sole discretion determine that Morton had provided substantial

assistance to law enforcement. However, because the District Court did not sentence

Morton pursuant to the Guidelines, there was no occasion for a § 5K1.1 motion.3

       Morton appeals. His counsel filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967). Under Anders, if, after review of the district court record and a

conscientious investigation, counsel is convinced that the appeal presents no issue of

arguable merit, counsel may properly ask to withdraw while filing a brief referring to



                   1
                    The District Court also imposed an eight-year term of
            supervised release. As part of the plea agreement, the Court
            dismissed Counts Three and Four of the indictment.
                   2
                    Based on his total offense level of 25 and criminal history
            category of III, Morton faced a Guidelines sentence of 70 to 87
            months in prison. However, because of the statutory minimums,
            the District Court was required to impose an aggregate minimum
            sentence of 180 months.
                   3
                    Notably, the Government did not agree to move for a
            departure below the statutory minimum for substantial assistance.
            See 18 U.S.C. § 3553(e).

                                             3
anything in the record that might arguably support the appeal. See id. at 741-42, 744. To

satisfy the Anders requirements, appellant’s counsel must “satisfy the court that he or she

has thoroughly scoured the record in search of appealable issues” and then “explain why

the issues are frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000)

(citation omitted).

       There is no dispute with respect to the facts in this case. The argument presented

in the counseled brief is that Morton’s mandatory sentence was based on a prior felony

drug conviction, the evidence of which was not submitted to a jury for proof beyond a

reasonable doubt. Counsel states that this claim is patently frivolous. We agree.

       In United States v. Booker, 543 U.S. 220 (2005), the Court held that, “[a]ny fact

(other than a prior conviction) which is necessary to support a sentence exceeding the

maximum authorized by the facts established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable doubt.” Id. at 244.

Morton conceded the prior felony drug conviction in his written guilty plea agreement

and the District Court imposed its sentence based solely upon facts established by the

plea. Moreover, a prior conviction is expressly excluded from the Booker requirement,

and the Government filed an information expressing its intention to seek the enhanced

sentence based on the prior conviction.

       In Almendarez-Torres, 523 U.S. 224 (1998), the Supreme Court held that a

sentencing judge may use a prior conviction to increase a statutory maximum without that



                                             4
conviction having been charged in an indictment and proved to a jury beyond a

reasonable doubt. Almendarez-Torres remains the law of land post-Booker. See United

States v. Ordaz, 398 F.3d 236, 241 (3d Cir. 2005). Thus, we must reject any suggestion

of constitutional error in the setting of Morton’s sentence, which, as noted, was not

enhanced based upon any facts found by the District Court at sentencing. Cf. United

States v. Harns, __ F.3d __, 2006 WL 1314654, at *6 (10th Cir. May 15, 2006)

(recognizing that “Booker does not preclude a court from imposing a statutory minimum

established by Congress based on a defendant’s record of prior convictions”).

       In addition, although Morton was sentenced under the pre-Booker, mandatory

Guidelines regime, a remand for resentencing under the current advisory Guidelines is not

necessary. As noted, Morton was sentenced to the statutory minimum for his offenses

because that minimum exceeded the upper-end of the recommended Guidelines sentence.

The District Court believed the sentence excessive, but it correctly acknowledged that it

was required by law to impose the statutorily mandated sentence. See United States v.

Kellum, 356 F.3d 285, 289 (3d Cir. 2004). The court imposed the lowest possible

sentence that Morton could receive under the controlling statutes. It is clear, as a matter

of law, that there is no basis upon which the District Court could impose a lower sentence

upon Morton post-Booker. Stated another way, the District Court’s sentencing of Morton

under the mandatory Guidelines regime worked no possible prejudice to Morton, and thus

a remand for resentencing is not required. Cf. United States v. Hill, 411 F.3d 425, 426



                                              5
(3d Cir. 2005) (declining to remand where district court had clearly indicated that it

would impose the same sentence if the Guidelines were advisory).

       We have reviewed the available record and note that it supports the guilty plea

accepted by the District Court. The District Court’s colloquy was sufficient to establish

that the plea was knowing, voluntary, and intelligent.

       Morton was advised that he could file a pro se brief. Morton attempts to present

what appears to be a claim of ineffective assistance of counsel, noting that his counsel did

not appear at the sentencing hearing but instead sent a substitute who had never

interviewed Morton. This court has expressed a preference that such a claim be raised on

collateral review rather than on direct appeal. See United States v. Thornton, 327 F.3d

268, 271 (3d Cir. 2003). Accordingly, we will deny Morton’s claim of ineffective

assistance of counsel without prejudice to his right to raise it in a motion under 28 U.S.C.

§ 2255.

       For the reasons stated, we will affirm the judgment of conviction and sentence and

grant counsel’s motion to withdraw.




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