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


11-2-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2887




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                        No. 05-2887
                                       ____________

                          UNITED STATES OF AMERICA

                                             v.

                                  AARON McGEE,

                                           Appellant
                                       ____________

                   On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                               (D.C. No. 98-cr-00017-8)
                   District Judge: Honorable Thomas M. Hardiman
                                    ____________

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

               Before: SMITH, FISHER and COWEN, Circuit Judges.

                             (Filed:    November 2, 2006)


                                       ____________

                             OPINION OF THE COURT
                                  ____________

FISHER, Circuit Judge.

      Aaron McGee appeals from an order revoking his supervised release and imposing

a 30-month term of imprisonment. Based on United States v. Booker, 534 U.S. 220
(2005), McGee claims that the District Court improperly calculated his term of

imprisonment, thereby violating his Sixth Amendment rights and the Ex Post Facto

Clause of the Constitution. We will affirm the judgment of sentence.

                                             I.

       We write only for the parties and thus will forgo lengthy recitation of the factual

and legal background to this case. McGee was sentenced to 60 months in prison to be

followed by a five-year term of supervised release after pleading guilty to one count of

conspiracy to distribute in excess of five kilograms of cocaine. He did not appeal from

the original conviction and sentence or file any post-conviction motions.

       After being released from prison, McGee spent three years at liberty before being

brought before the District Court for violating conditions of his supervised release.

Following a revocation hearing, the District Court found that McGee had violated

conditions of his supervised release and sentenced him to a 30-month term of

imprisonment. The District Court calculated McGee’s suggested Guidelines range as

27-33 months based on the fact that McGee’s underlying conviction was a Class A

Felony, that his supervised release violation was a Grade A Violation, and that his

criminal history category was II. The District Court also stated on the record its

consideration of the factors put forth in 18 U.S.C. § 3583(e), the statute governing

revocation of terms of supervised release.

       On appeal, McGee argues that the District Court incorrectly sentenced him to 30

months. He claims that under Booker, the maximum sentence he could have received for

                                             2
his conspiracy charge was the 168 months authorized by the Sentencing Guidelines. With

a sentence of 168 months, his conviction could only have been classified as a Class B

Felony. Instead, at sentencing, his underlying conspiracy charge was classified as a Class

A Felony based on the maximum penalty of life set out in Title 21. Therefore, he argues,

he was improperly sentenced to a five-year term of supervised release associated with a

Class A Felony instead of the three-year term of supervised release associated with a

Class B Felony. Upon revocation, McGee concludes, he should have been sentenced to

no more than 21 months, the maximum Guidelines sentence for revocations based on

underlying Class B Felonies.

       Even if McGee’s argument had merit,1 he is barred from raising that argument for

the first time on appeal from his revocation hearing. The foundation of McGee’s

argument is that his original term of supervised release was incorrectly calculated at five,

rather than three, years. He did not ever appeal that sentence or file any post-conviction

motion. Because a sentence imposed upon revocation of supervised release is “most

properly viewed as a consequence of the original criminal conviction,” United States v.


       1
        We note that it does not. Prior to Booker, we held that sentences imposed for
violations of conditions of supervised release were not mandatory in the way the
Sentencing Guidelines were. United States v. Schwegel, 126 F.3d 551, 553 (3d Cir.
1997). Guideline § 7B1.4 never carried with it a mandate to courts to impose the
sentence listed. District courts always operated under a discretionary system in the realm
of supervised release. Id. Our sister courts who have considered this issue post-Booker
agree that Booker has not affected the imposition of terms of supervised release or
sentencing for violations of that supervised release. See, e.g., United States v. Hinson,
429 F.3d 114, 118 (5th Cir. 2005); United States v. Work, 409 F.3d 484, 490 (1st Cir.
2005); United States v. Edwards, 400 F.3d 591, 592 (8th Cir. 2005).

                                             3
Dozier, 119 F.3d 239, 241 (3d Cir. 1997) (questioned on other grounds), a defendant may

not bring up on an appeal from a revocation of supervised release an argument attacking

his underlying sentence. United States v. Stine, 646 F.2d 839, 844 (3d Cir.1981). He

must raise that argument on a direct appeal. By failing to do so, McGee waived his right

to attack his sentence now. United States v. Pultrone, 241 F.3d 306, 308 (3d Cir. 2001).2

                                            II.

       As a final attempt to reduce his term of imprisonment, McGee argues that the

District Court violated the Ex Post Facto clause. McGee failed to raise that argument

before the District Court, reducing our review to plain error. Fed. R. Crim. P. 52(b);

United States v. Vazquez, 271 F.3d 93, 99 (3d Cir. 2001). However, even if our review

were more rigorous, McGee’s argument must fail. Recently this Court has joined

unanimous courts of appeals in rejecting ex post facto arguments under Booker. United

States v. Pennavaria, 445 F.3d 720, 724 (3d Cir. 2006); see also United States v. Lata,

415 F.3d 107 (1st Cir. 2005); United States v. Vaughn, 430 F.3d 518 (2d Cir. 2005);

United States v. Jamison, 416 F.3d 538 (7th Cir); United States v. Duncan, 400 F.3d 1297

(11th Cir. 2005). Under Pennavaria, McGee’s ex post facto argument fails for two

reasons. First, the Supreme Court “clearly instructed that both of its [Booker] holdings

should be applied to all cases on direct review.” Id. Second, McGee had fair warning


       2
        While McGee’s counsel argued at the revocation hearing that McGee could not
have been required to expect the Booker decision at the time he was convicted, this Court
has clearly rejected that contention. Lloyd v. United States, 407 F.3d 608, 615-16 (3d Cir.
2005) (holding that Booker is not retroactive).

                                             4
that conspiracy to distribute cocaine was punishable under Title 21 by as much as life in

prison and brought with it a five-year term of supervised release. We see nothing in

McGee’s argument to suggest we should reconsider our holding in Pennavaria.

       For these reasons, we will affirm the sentence imposed by the District Court.




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