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


3-15-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2001




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"USA v. Hayes" (2006). 2006 Decisions. Paper 1431.
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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 04-2001


                           UNITED STATES OF AMERICA

                                            v.

                              DEDRIC DYSHON HAYES
                                    aka Dereke

                                     Dedric Hayes,
                                      Appellant


                      Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                          (D.C. Criminal No. 03-cr-00062-1)
                        District Judge: Honorable Yvette Kane


                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 25, 2006

                 Before: RENDELL and STAPLETON, Circuit Judges,
                            and GILES*, District Judge

                                 (Filed March 15, 2006)


                              OPINION OF THE COURT




* Honorable James T. Giles, District Court Judge for the Eastern District of
Pennsylvania, sitting by designation.
RENDELL, Circuit Judge.

       On September 4, 2003, Dedric Hayes pleaded guilty to unlawful distribution of an

unspecified quantity of crack cocaine, in violation of 21 U.S.C § 841(a)(1).   After

considering the Presentence Investigation Report, the District Court granted a 25 percent

downward departure from an imprisonment range of 235 to 239 months under the

Sentencing Guidelines -- calculated from a base offense level of 36 and including a

reduction of three levels for acceptance of responsibility, but without applying a proposed

two point increase for possession of a dangerous weapon -- and arrived at a sentence of

176 months imprisonment.

       On appeal, Hayes argues that the District Court’s decision to set Hayes’ base

offense level at 36 violated his Sixth Amendment rights under Blakely v. Washington, 542

U.S. 296 (2004). While United States v. Booker, 125 S.Ct. 738 (2005), had not been

decided at the time of briefing, we directed Hayes to comment on the applicability of

Booker to his case. In a letter dated March 22, 2005, Hayes responded that his sentence

was improper in light of Booker because the District Court considered the Sentencing

Guidelines as mandatory, rather than advisory. Hayes also asserts that the District Court

erred in setting his sentencing base level based on facts contained in the Presentence

Investigation Report because the facts had not been admitted nor proven beyond a

reasonable doubt. We have jurisdiction to review Hayes’ sentence pursuant to 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a).



                                             2
       In United States v. Davis, 407 F.3d 162, 165 (3d Cir. 2005), we held that

defendants sentenced under the previously mandatory Sentencing Guidelines should have

their sentences remanded to the District Court for resentencing. Thus, in accordance with

Davis, we will vacate the sentence and remand for resentencing in accordance with

Booker. Davis, 407 F.3d at 165.

       Because we are remanding for sentencing in accordance with Booker, we need not

address appellant’s claim that his sentence of nearly 15 years violates the Eighth

Amendment’s proscription against cruel and unusual punishment. Nevertheless, in the

interest of conserving judicial resources, we will consider appellant’s contention that his

sentence violates the Eighth Amendment because it is cruel. See United States v.

Pojilenko, 416 F.3d 243, 246 (3d Cir. 2005) (addressing appellant’s challenge to district

court’s interpretation of Section 3B1.4 of Sentencing Guidelines in interest of conserving

judicial resources and avoiding unnecessary appeal).

       Though Hayes concedes that his sentence is not unusual, he maintains that its

length is, nonetheless, cruel. We observe that the United States Supreme Court’s decision

in Harmelin v. Michigan, 501 U.S. 957 (1991), is instructive on this point. In Harmelin,

the defendant was convicted of possession of 672 grams of cocaine. Id. at 961. While

the defendant had no prior felony convictions, the Court held that the defendant’s

mandatory sentence to life in prison without the possibility of parole did not violate the




                                              3
Eighth Amendment.1 Id. at 996-97. The Court noted that “[s]evere, mandatory penalties

may be cruel, but they are not unusual in the constitutional sense.” Id. At 994. Here,

unlike the defendant in Harmelin, Hayes had prior felony convictions and pleaded guilty

not simply to possession, but also to distribution. Therefore, because the Court in

Harmelin upheld a greater sentence as consistent with the Eighth Amendment, we

observe that Hayes’ sentence does not violate the Eighth Amendment’s prohibition

against cruel and unusual punishment.




       1
       The Court did not reach an agreement as to whether the Eighth Amendment
included a requirement of proportionality, but five justices agreed that this sentence
should be upheld under the Eighth Amendment. Harmelin, 501 U.S. at 996-97.

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