                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-9-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2394




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Recommended Citation
"USA v. Aikens" (2005). 2005 Decisions. Paper 717.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/717


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APS-319
                                                           NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                    NO. 05-2394
                                 ________________

                          UNITED STATES OF AMERICA

                                           v.

                                  PHILIP AIKENS
                                       a/k/a
                                     FROGGY

                                     Philip Aikens,

                                            Appellant
                     ____________________________________

                   On Appeal From the United States District Court
                       For the Eastern District of Pennsylvania
                            (D.C. Crim. No. 01-cr-00335)
                      District Judge: Honorable Jan E. Dubois
                   _______________________________________

 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  July 28, 2005

       Before: SLOVITER, FUENTES AND NYGAARD*, CIRCUIT JUDGES

                               (Filed: August 9, 2005)


                             _______________________

                                     OPINION
                             _______________________

*Honorable Richard L. Nygaard assumed senior status on July 9, 2005.
PER CURIAM




       Appellant Philip Aikens, a federal prisoner, appeals the order of the United States

District Court for the Eastern District of Pennsylvania denying his motion under

28 U.S.C. § 2255 to vacate his sentence. We will affirm the District Court’s order.

       After a jury trial, Aikens was convicted of theft of an interstate shipment and

aiding and abetting, conspiracy to interfere with interstate commerce by robbery,

interference with interstate commerce by robbery and aiding and abetting, brandishing a

firearm during and in relation to a crime of violence and aiding and abetting, and willful

failure to appear before the court. Aikens was sentenced to 156 months of imprisonment

in the aggregate, plus supervised release, a special assessment, and restitution. This Court

affirmed the conviction and sentence on May 14, 2003.

       Aikens then filed a motion under 28 U.S.C. § 2255 to vacate his sentence,

contending that he was sentenced in violation of Apprendi v. New Jersey, 530 U.S. 466

(2000), in light of Blakely v. Washington, 542 U.S. 296 (2004), which was decided after

Aikens’s conviction became final. Specifically, Aikens claimed that his Sixth

Amendment right to a jury trial was violated because his sentence was increased on the

basis of judicial fact-finding using a preponderance of the evidence standard, rather than

upon submission of evidence for the facts supporting the sentencing enhancements to be

found beyond a reasonable doubt by the jury. By memorandum and order entered on
February 28, 2005, the District Court denied the section 2255 motion. Recognizing that

Aikens’s claim was governed by United States v. Booker, 125 S. Ct. 738 (2005), which

applied the Blakely rule to the United States Sentencing Guidelines, the District Court

concluded that Booker was not retroactive to cases on collateral review. The District

Court granted a certificate of appealability as to Aikens’s sentencing claim.

       After Aikens filed his notice of appeal, we decided Lloyd v. United States,

407 F.3d 608 (3d Cir. 2005). We then asked the parties to submit written argument in

support of, or in opposition to, summary affirmance. The appellee has responded.

       We held in Lloyd that the rule announced in Booker is a new rule of criminal

procedure that is not retroactively applicable to cases on collateral review. Lloyd,

407 F.3d 608. Thus, Aikens is not entitled to relief under Booker. Because this appeal

presents “no substantial question,” see 3d Cir. LAR 27.4 and I.O.P. 10.6, we will

summarily affirm the District Court’s order denying Aikens’s section 2255 motion.
