                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-14-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4688




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"USA v. Forth" (2007). 2007 Decisions. Paper 1629.
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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                Nos. 05-4688 / 05-4689


                           UNITED STATES OF AMERICA

                                           v.

                                  TERRELL FORTH,

                                                Appellant



                     Appeal from the United States District Court
                              for the District of New Jersey
              (D.C. Criminal Action Nos. 05-cr-00001-1 and 04-cr-00511)
                     District Judge: Honorable Jerome B. Simandle


                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 4, 2006

                    Before: RENDELL and AMBRO, Circuit Judges
                              BAYLSON,* District Judge

                           (Opinion filed: February 14, 2007)


                                       OPINION


AMBRO, Circuit Judge

   *
    Honorable Michael M. Baylson, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
       Terrell Forth requests on appeal that we vacate and remand his sentence of 78

months’ imprisonment for one count of unlawful possession of a firearm by a convicted

felon, in violation of 18 U.S.C. § 922(g), and 160 months’ imprisonment for two counts

of bank robbery, in violation of 18 U.S.C. § 2113(a). Forth asserts this course is proper

because the District Court applied the incorrect standard of proof for facts that led to the

imposition of a five-level enhancement to his Guidelines base offense level.1

       Because we write only for the parties, an extended discussion of the facts is not

necessary. Forth completed a four-year prison term for drug distribution, theft, and

unlawful possession of a weapon, and was released in late 2003. Shortly after his release,

he was arrested for possession of a sawed-off shot gun. While on bail awaiting trial,

Forth and a co-conspirator robbed two banks at gunpoint.

       He was charged with one count of unlawful possession of a firearm by a convicted

felon and four counts of bank robbery. After unsuccessful negotiations for a plea

agreement on every count, Forth entered into a plea agreement admitting guilt for the

single count of unlawful possession of a firearm by a convicted felon and to two of the

four counts of bank robbery without a plea agreement in place. (The Government

dismissed the remaining two counts.) Both parties agreed to leave for sentencing the

issue of whether Forth brandished a firearm during the robberies, which is relevant to a


   1
    We have jurisdiction over this appeal under 18 U.S.C. § 3742(a) and 28 U.S.C.
§ 1291. See United States v. Cooper, 437 F.3d 324, 327 (3d Cir. 2006).

                                              2
proper calculation of the advisory Guidelines range.

         At sentencing the District Court heard evidence on this issue. It found by a

preponderance of the evidence that Forth had brandished a firearm during both bank

robberies and imposed a five-level sentence enhancement. Forth argued that factual

findings relevant to sentencing—in this case, whether he brandished a firearm—require

proof beyond a reasonable doubt.

         Our en banc Court recently rejected this argument. United States v. Grier, No. 05-

1698, ___ F.3d ___, 2007 WL 315102 (3d Cir. Feb. 5, 2007). Grier clarified that even

after the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), “the

right to proof beyond a reasonable doubt does not apply to facts relevant to enhancements

under an advisory Guidelines regime.” Id. at *6. Because Booker severed and excised

those portions of the law that made the Guidelines mandatory, finding Guidelines facts by

a preponderance of the evidence will suffice for constitutional purposes. Id. at *8. In this

case, therefore, the District Court’s finding by a preponderance of the evidence that Forth

brandished a firearm passes muster, and we affirm the sentence imposed by the District

Court.




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