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


10-10-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4130




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                                              NON-PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT




                    No. 05-4130


         UNITED STATES OF AMERICA

                          v.

           CHRISTOPHER D. NEARY,

                                  Appellant


   On Appeal from the United States District Court
            for the District of New Jersey
           District Court No. 03-cr-00441
     District Judge: Hon. Dennis M. Cavanaugh


     Submitted under Third Circuit LAR 34.1(a)
                 on July 11, 2006

Before: SMITH, ALDISERT, and ROTH, Circuit Judges

         (Opinion Filed: October 10, 2006)




                     OPINION
ROTH, Circuit Judge:

       Christopher Neary appeals from the judgment of sentence imposed by the United

States District Court for the District of New Jersey. For the reasons stated below, we will

affirm the order of the District Court.

I. Background and Procedural History

       As the parties are familiar with the facts and procedural posture of this case, we

will provide only a brief synopsis of the events leading up to this appeal.

       On March 27, 2003, Christopher Neary was arrested for committing a bank

robbery in the Chester Springs Mall in Chester, New Jersey. He was indicted on one

count of bank robbery in violation of 18 U.S.C. § 2113. On August 8, 2003, Neary

entered a guilty plea. The Probation Office prepared a pre-sentence investigation report

(PSR) which recommended (1) a base offense level of 20 pursuant to U.S.S.G. § 2B3.1,

(2) a 2-level upward adjustment under U.S.S.G. § 2B3.1(b) because the offense involved

property taken from a financial institution, (3) an upward enhancement as a career

offender pursuant to U.S.S.G. § 4B1.1, and (4) a 3-level reduction for acceptance of

responsibility. The PSR calculated Neary’s criminal history score as 15, which placed

him in category VI. Neary objected to the Probation Office’s career offender calculation.

       On August 11, 2003, the District Court conducted a sentencing hearing and

determined that Neary’s three previous convictions for bank robberies were separate and

distinct and thus unrelated for purposes of U.S.S.G. § 4A1.2. This determination meant



                                              2
that Neary qualified as a career offender. The District Court then concluded that the

applicable Guidelines range was 151-188 months and sentenced Neary to a term of 170

months imprisonment.

       Neary appealed the sentence on two grounds. He contends, first, that the District

Court erred in determining that he was a career offender, and, second, that the District

Court erred in failing to depart downward. In a non-precedential opinion issued on June

24, 2004, we affirmed the Judgment and Commitment Order because the District Court’s

determination that the prior bank robberies were unrelated was easily supported by the

record and we lacked jurisdiction to review the District Court’s discretionary decision not

to depart downward.

       Neary petitioned for rehearing on the basis of Blakely v. Washington, 542 U.S.

296 (2004), which was issued the same day as our opinion affirming the District Court.

After the opinion in United States v. Booker, 543 U.S. 220 (2005), was issued, we

remanded the case for resentencing. The District Court resentenced Neary on August 29,

2005, to the same term of imprisonment (170 months). Neary appealed again. He now

raises three claims of error. First, he asserts that the District Court erred in applying the

career offender enhancement under U.S.S.G. § 4B1.1 because the District Court

purportedly engaged in impermissible fact-finding resulting in a violation of the Sixth

Amendment. Second, Neary claims that the District Court violated the Ex Post Facto and

Due Process Clauses by resentencing him to 170 months when, Neary claims, he faced a



                                               3
“statutory maximum” Guidelines range of 71 months under the former mandatory

Guidelines regime. Finally, Neary argues that his sentence is unreasonable, in part

because the District Court allegedly failed to consider adequately the 18 U.S.C. § 3553(a)

factors. II. Jurisdiction and Standard of Review

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 (“The district

courts of the United States shall have original jurisdiction . . . of all offenses against the

laws of the United States.”). We have jurisdiction under 28 U.S.C. § 1291. Also, we

have jurisdiction to review the sentence for reasonableness pursuant to 18 U.S.C. §

3742(a)(1). United States v. Cooper, 437 F.3d 324, 327 (3d Cir. 2006). Neary has the

burden of demonstrating the unreasonableness of the sentence. Id. at 332.

III. Discussion

A. Sixth Amendment Claim

       Neary argues that the District Court violated the Sixth Amendment by finding that

his prior convictions were unrelated and were crimes of violence within the meaning of

U.S.S.G. § 4B1.1. Neary makes his Sixth Amendment argument principally on the basis

of two Supreme Court cases: Almendarez-Torres v. United States, 523 U.S. 224, 226-27

(1998), and Shepard v. United States, 544 U.S. 13 (2005). As the following discussion

will demonstrate, Neary’s argument is unavailing.

       In Almendarez-Torres, the Court held that the fact of a prior conviction can be

used to enhance a sentence even if that fact is not stated in the indictment or proved to the



                                               4
jury beyond a reasonable doubt. 523 U.S. at 239-244. We have previously recognized

that the ruling of Almendarez-Torres has been undercut by the Supreme Court’s

sentencing jurisprudence culminating in Booker. United States v. Ordaz, 398 F.3d 236,

241 (3d Cir. 2005). Nevertheless, Almendarez-Torres remains good law. Id.

       In Shepard, the Court addressed the Armed Career Criminal Act (ACCA), 18

U.S.C. § 924(e), which mandates a minimum sentence of 15-years for anyone possessing

a firearm after three prior convictions for serious drug offenses or violent felonies. The

Shepard Court was faced with the question whether a sentencing court could look to

police reports or complaint allegations in deciding whether a previous guilty plea was

necessary for a “generic burglary,” a determination that makes a burglary a violent felony

and thus subject to consideration for ACCA purposes. 544 U.S. at 16-17. Shepard

concluded that using such materials was improper and that courts sentencing under the

ACCA were limited to certain documents that more definitively set forth the nature of the

crime of conviction. Id. at 26. The Court based its decision on congressional intent in

enacting the ACCA and noted the potential Sixth Amendment issues that were attendant

to an approach that would enable the District Court to find facts that “increas[ed] the

ceiling of a potential sentence.” Id. at 23-25.

       The fatal flaw in Neary’s argument is that, post-Booker, the District Court’s

determinations that the previous crimes were crimes of violence and were

unrelated–assuming, arguendo, that these were factual determinations–did not expose



                                              5
Neary to punishment beyond the statutory maximum for his offense of conviction and,

therefore, do not constitute impermissible judicial fact-finding. See United States v.

Miller, 417 F.3d 358, 363 (3d Cir. 2005).

       Shepard’s reticence to allow judicial fact-finding beyond the mere fact of a prior

conviction in ACCA cases is understandable because such fact-finding had the potential

to increase the defendant’s exposure to punishment. To illustrate: the defendant in

Shepard pled guilty to being a felon in possession of a firearm, which exposed him to a

statutory maximum term of 10 years imprisonment under 18 U.S.C. § 924(a)(2).

Applying the ACCA’s 15-year minimum sentence upon a judicial assessment of facts

beyond those authorized to be found by Almendarez-Torres would therefore have violated

Booker. Id. at 26-27 (Thomas J., concurring).

       In this case, to the contrary, the District Court’s determination that Neary’s

previous crimes were unrelated crimes of violence did not “increase the ceiling of

[Neary’s] potential sentence.” In an advisory Guidelines regime, the statutory maximum

for Neary’s bank robbery conviction is twenty years. 18 U.S.C. § 2113(a). The District

Court, applying the Guidelines in an advisory fashion per Booker, sentenced him to

slightly more than 14 years. Pursuant to Booker’s basic logic, the judicial fact-finding of

the characteristics of Neary’s prior convictions did not expose him to punishment beyond

the statutory maximum. Accordingly, the determination that the prior offenses were

crimes of violence did not constitute a Sixth Amendment violation.



                                              6
B. Ex Post Facto and Due Process Claims

       Neary’s next argument is that imposition of a 170-month sentence is impermissible

because applying Booker’s remedial holding to him retroactively increases his

punishment in violation of the Ex Post Facto Clause and Due Process notice

requirements.1 We disagree.

       We have already held that applying Booker’s remedial holding to petitioners in

Neary’s position does not violate Ex Post Facto or Due Process Clause principles.

Pennavaria, 445 F.3d at 723-24; see also e.g., United States v. Vaughn, 430 F.3d 518, 525

(2d Cir. 2005) (joining five other courts in rejecting due process/ex post facto challenges

to the retroactive application of Booker’s remedial holding). Booker itself expressly

provided that both of its holdings should be applied to pending cases. Pennavaria, 445

F.3d at 723-24 (citing Booker, 543 U.S. at 268). Moreover, Neary had fair warning that

his conduct was criminal, that the statutory maximum penalty was twenty years, and that

judicial fact-finding could affect where his sentence fell within the range authorized by

the facts he admitted in his plea. Id. Booker’s remedial holding did not change any of

that. Indeed, Neary received the same sentence both pre- and post-Booker.

C. Reasonableness




   1
    The Ex Post Facto Clause itself does not apply to judicial decisions. United States v.
Pennavaria, 445 F.3d 720, 723-24 (3d Cir. 2006). However, “‘limitations on ex post facto
judicial decision-making are inherent in the notion of due process.’” Id. (quoting Rogers
v. Tennessee, 532 U.S. 451, 456 (2001)).

                                             7
          Neary’s final argument is that the District Court’s 170-month sentence is

unreasonable, in large part because the District Court relied on matters discussed in the

first sentencing proceeding and allegedly failed to consider all of the 18 U.S.C. § 3553(a)

factors. Once again, we find Neary’s arguments unpersuasive.

          When reviewing a sentence for reasonableness, we must satisfy ourselves that the

District Court “exercised its discretion by considering the relevant [§ 3553(a)] factors.”

Cooper, 437 F.3d at 329. Also, the District Court must address the arguments raised by

the defendant. See, e.g., id.

          It is plain that the District Court considered the § 3553(a) factors in this case and

addressed Neary’s concern that his criminal history was less severe than the Guidelines

range reflected. The District Court specifically incorporated its previous discussion of the

seriousness of Neary’s crimes and his past criminal history. The District Court then

stated:

                 I refer to the Public Defender’s letter, on page two, under 18 U.S.C. Section
                 3553, where he refers to the purposes for the sentencing, and, specifically,
                 to reflect the seriousness of the offense, to promote respect for the law, and
                 to provide just punishment for the offense, to afford adequate deterrence to
                 criminal conduct, to protect the public from further crimes of the
                 Defendant, and to provide the Defendant with needed education or
                 vocational training, medical care, or other correctional treatment in a most
                 effective manner.

                 Those things have been considered. I do consider those. But under all of
                 the circumstances, I don’t see any reason why I should deviate from the
                 sentence that I imposed the last time till today. I don’t see anything
                 different. I recognize that the guideline range is advisory, but I don’t see
                 anything that’s changed since the other sentencing.

                                                 8
The fact that the District Court did not mechanically analyze each distinct factor does not

compel a conclusion that if failed to consider adequately the § 3553(a) factors. See

Cooper, 437 F.3d at 329 (“Nor must a court discuss and make findings as to each of the §

3553(a) factors if the record makes clear the court took the factors into account in

sentencing.”). Based on the entirety of the sentencing proceeding, we are convinced that

the District Court met its responsibilities under § 3553(a) and our decision in Cooper, and

we conclude that Neary has failed to meet his burden of establishing unreasonableness.




IV. Conclusion

       For the reasons stated above, we will affirm the District Court’s judgment of

sentence.




                                             9
