                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-8-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4062




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                                                            NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                    No. 05-4062


                         UNITED STATES OF AMERICA

                                         v.

                                 KEITH BLOUNT,
                                            Appellant


            APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                           D.C. Crim. No. 98-cr-00412-2
                District Judge: The Honorable Eduardo C. Robreno


                     Submitted Under Third Circuit LAR 34.1(a)
                                  May 21, 2007


            Before: BARRY, CHAGARES, and TASHIMA,* Circuit Judges

                            (Opinion Filed: June 8, 2007)


                                     OPINION




  *
    The Honorable A. Wallace Tashima, Senior Circuit Judge, United States Court of
Appeals for the Ninth Circuit, sitting by designation.
BARRY, Circuit Judge

       On March 3, 1999, a jury found Appellant Keith Blount guilty on one count of

intentionally distributing approximately one kilogram of cocaine, in violation of 21

U.S.C. § 841(a)(1). The District Court sentenced Blount as a career offender to 264

months’ imprisonment and three years of supervised release, applying the 40-year

statutory maximum under 21 U.S.C. § 841(b)(1)(B). Blount appealed, and on December

20, 2000, we affirmed the judgment in an unpublished memorandum opinion. See United

States v. Blount, 251 F.3d 154 (Table) (3d Cir. 2000), cert. denied, 534 U.S. 908 (2001).

       On September 23, 2002, Blount filed a motion under 28 U.S.C. § 2255 to vacate,

set aside or correct his sentence, arguing that his trial counsel was ineffective. The

District Court granted the motion in part and denied it in part, finding trial counsel

ineffective for failing to request a sentence adjustment under U.S.S.G. § 5G1.3 to reflect

time that Blount had served in state confinement prior to his federal sentencing. The

Court ordered a resentencing hearing “to consider whether a downward departure to take

into account time served in state incarceration prior to the federal sentencing is

warranted.” (Appellant’s App. vol. II at 267.)

       On August 26, 2005, the District Court awarded Blount maximum credit for his

time in state confinement and amended the judgment to reflect an adjusted sentence of

245 months and 28 days, to run concurrent with his undischarged state sentence. In so

doing, the Court found that neither Blakely v. Washington, 542 U.S. 296 (2004), nor


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United States v. Booker, 543 U.S. 220 (2005), entitled Blount to a de novo resentencing.

In the alternative, the Court denied Blount’s objections to the presentence investigation

report. Blount’s adjusted sentence was within the advisory Guidelines range of 262 to

327 months. This appeal followed.1

       Blount argues that the District Court instructed the jury that drug quantity was not

an element of the offense, thus exposing him only to the 20-year statutory maximum

under 21 U.S.C. § 841(b)(1)(C). He also contends that the Court failed to give

meaningful consideration to the sentencing factors set forth in 18 U.S.C. § 3553(a). The

government responds that the 40-year statutory maximum applied because Blount

stipulated to a drug quantity of 996 grams and because he was a career offender under

U.S.S.G. § 4B1.1. It also notes that the sole purpose of the resentencing hearing was to

determine Blount’s entitlement to credit for time served in state custody, not to reconsider

de novo his previously-affirmed sentence.

       Because Booker does not apply retroactively to cases on collateral review, Lloyd v.

United States, 407 F.3d 608, 615-16 (3d Cir. 2005), we agree with the District Court’s

conclusion that Blount was not entitled to a de novo resentencing. His renewed challenge

to the Court’s application of the 40-year statutory maximum and career offender

designation, therefore, is not before us. Even if it were, however, we would adhere to our




   1
      The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

                                             3
prior rejection of this argument. Blount’s stipulation to a drug quantity of 996 grams of

cocaine, his stipulation that the chemist’s report establishing this quantity was “accurate,”

and his attorney’s representation that “the quantity of the drugs is not in dispute,”

resolved any possible error under Apprendi v. New Jersey, 530 U.S. 466 (2000). See

Blakely, 542 U.S. at 303 (“[T]he ‘statutory maximum’ for Apprendi purposes is the

maximum sentence a judge may impose solely on the basis of the facts reflected in the

jury verdict or admitted by the defendant.” (some emphasis omitted)).

       Blount’s related argument concerning Amendment 591 to the Sentencing

Guidelines, which applies retroactively pursuant to U.S.S.G. § 1B1.10, fails largely for

the same reason. That amendment requires only that the sentencing court determine the

base offense level with reference to the offense of conviction. Under Appendix A of the

Sentencing Guidelines, the base offense level applicable to any conviction under 21

U.S.C. § 841(a) or (b)(1)-(3) is § 2D1.1, the provision applied here. We are satisfied that

the District Court utilized the correct offense guideline, and, more to the point, that

Blount’s career offender status properly overrode the base offense level.

       Finally, Blount’s argument concerning the § 3553(a) factors is unavailing. As

noted, Booker does not apply here. Even if it did, however, we would find that the

District Court adequately addressed all pertinent § 3553(a) factors. We will affirm.




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