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


4-5-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2140




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"USA v. Anderson" (2006). 2006 Decisions. Paper 1314.
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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 05-2140


                            UNITED STATES OF AMERICA

                                            v.

                                ANTHONY ANDERSON,
                                            Appellant


             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                              D.C. Crim. 04-cr-00612
                   District Judge: The Honorable Jan E. DuBois


                       Submitted Under Third Circuit LAR 34.1(a)
                                   March 30, 2006


          Before: McKEE, BARRY and VAN ANTWERPEN, Circuit Judges


                              (Opinion Filed: April 5, 2006)


                                        OPINION




BARRY, Circuit Judge

       Anthony Anderson appeals from a sentence imposed by the United States District

Court for the Eastern District of Pennsylvania, contending that the District Court
erroneously relied on his previous convictions in calculating the applicable range of

imprisonment under the U.S. Sentencing Guidelines. We exercise jurisdiction pursuant to

28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and will affirm.

        On October 23, 1991, Anderson, a Jamaican national, was sentenced in New

York State court to imprisonment for one year for the attempted sale of a controlled

substance in the third degree and for one to three years for attempted robbery. As a result,

he was deported in 2001. But Anderson returned, and he came to the attention of the

authorities in August 2004 after an altercation with a customer at a restaurant he owned at

the time.

       Thereafter, the government charged Anderson with illegal reentry in violation of 8

U.S.C. § 1326. Attached to the indictment was a Notice of Prior Convictions, which

charged that he had been convicted of the two New York State felonies. Also attached

was a Notice of Additional Factor, which charged that he had been deported “after a

conviction for a felony that is a crime of violence, as described in U.S.S.G. §

2L1.2(b)(1)(A).” If the 2001 deportation was found to be “subsequent to a conviction for

commission of an aggravated felony,” 8 U.S.C. § 1326 (b)(2), Anderson faced a statutory

maximum sentence of twenty years in prison as opposed to two years. On December 14,

2004, he pled guilty to the charge of illegal reentry and admitted having been convicted of

both prior felonies.

       At the April 6, 2005 sentencing hearing, the District Court calculated Anderson’s



                                             2
total offense level to be 21. One aspect of that calculation was a 16-level increase

resulting from his prior conviction for an aggravated felony. His counsel informed the

Court of his client’s “aware[ness] that the . . . attempted robbery triggers the 16-level

enhancement.” (A65) The resulting Guidelines range was 41 to 51 months, and the

District Court, after recognizing that the Guidelines were only advisory, sentenced

Anderson to 41 months in prison. Anderson appeals, arguing that “prior convictions that

enhance the statutory penalty must be charged in the indictment and, if not admitted,

proved to a jury beyond a reasonable doubt.” (Appellant’s Br. at 6.)1 That argument is

unavailing.

         The Supreme Court, in Almendarez-Torres v. United States, 523 U.S. 224 (1998),

held that prior convictions that increase the statutory maximum for a particular offense

are not elements of the offense of conviction and, consequently, may be found by a

sentencing judge by a preponderance of the evidence. This did not change as a result of

the Court’s subsequent decision in United States v. Booker, 543 U.S. 220 (2005).2

Indeed, Anderson concedes as much, “recogniz[ing] that Almendarez-Torres v. United

States, 523 U.S. 224 (1998) is contrary to [his] position on appeal, and that this Court has



   1
       Our review of this purely legal question is plenary.
   2
     Under Booker, sentencing judges are still required to make findings relevant to
sentencing, but may not treat the resulting Guidelines range as mandatory. See United
States v. Davis, 407 F.3d 162, 163 (3d Cir. 2005) (“[T]he Booker majority held that mandatory
enhancement of a sentence under the Guidelines, based on facts found by the court alone,
violates the Sixth Amendment.”).

                                               3
recognized the continuing vitality of Almendarez-Torres in the wake of United States v.

Booker . . . .” (Appellant’s Br. at 7) As we stated in United States v. Ordaz, 398 F.3d 236

(3d Cir. 2005):

       We do not gainsay that there is a tension between the spirit of Blakely 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. Nonetheless, as an
       inferior federal court we have the responsibility to follow directly
       applicable Supreme Court decisions.

       The holding in Almendarez-Torres remains binding law, and nothing in
       Blakely or Booker holds otherwise. Thus, because we are bound by
       Almendarez-Torres, we hold that the District Court's determination
       regarding the facts of Ordaz's prior convictions did not violate the Sixth
       Amendment, notwithstanding that the sentences were based, in part, on
       facts found by a judge rather than a jury.

Id. at 241. So, too, here.

       We will affirm the judgment of sentence.




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