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


3-2-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1149




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"USA v. Istreffi" (2006). 2006 Decisions. Paper 1490.
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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 04-1149


                          UNITED STATES OF AMERICA,



                                           v.

                               FAIK MUSA ISTREFFI,

                                                             Appellant.


                      Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                             (Criminal No. 01-cr-00303-01)
                     (Honorable James M. Munley, District Judge)


                   Submitted pursuant to Third Circuit L.A.R. 34.1(a)
                                   January 19, 2006

          Before: McKEE, VAN ANTWERPEN, and SILER,* Circuit Judges.

                                 (Filed: March 2, 2006)



                              OPINION OF THE COURT




   *
   The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge, United States
Court of Appeals for the Sixth Circuit, sitting by designation.
PER CURIAM.

       Defendant Faik Istreffi appeals his sentence on the basis that the district court found

facts in violation of his Sixth Amendment rights and that his sentence was imposed in

misapprehension that the sentencing guidelines were mandatory.             We find no Sixth

Amendment violation, but vacate the sentence and remand for re-sentencing in accordance

with United States v. Booker, 543 U.S. 220, 264 (2005).

                                               I.

       Istreffi was indicted on a violation of the Racketeer Influence in Corrupt Organization

(“RICO”) act, 18 U.S.C. § 1962(d), for activities related to trafficking in contraband such as

cocaine and stolen vehicles, and a second count under 21 U.S.C. § 846 for conspiracy to

distribute in excess of five kilograms of cocaine. He was also indicted on one count of

committing access device fraud under 18 U.S.C. § 1029(b)(2); one count of conspiracy to

traffic in stolen vehicles and to commit mail fraud under 18 U.S.C. § 371; forty-nine counts

of mail fraud under 18 U.S.C. § 1341 for filing fraudulent title applications; and one count

of money laundering conspiracy under 18 U.S.C. § 1956(h).

       Istreffi changed his plea to guilty to all counts except one in February 2003 in the

middle of his trial. At the sentencing hearing held in January 2004, the district court inquired

into whether Istreffi had reviewed the Presentence Report (“PSR”), and his attorney affirmed

that they had and that any objections they had were withdrawn. The court then found that

this case did not qualify for a downward departure and imposed a 168-month sentence, which

is the lowest suggested by the PSR.

                                              II.

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       We review issues not raised before the district court for plain error. See United States

v. Vasquez, 271 F.3d 93, 99 (3d Cir. 2001) (en banc). An error is plain if it is contrary to law

at the time the error was made. Johnson v. United States, 520 U.S. 461, 466-67 (1997).

                                              A.

       Istreffi contends that his sentence was imposed in reliance on certain facts that he

never admitted nor were found by a jury beyond a reasonable doubt. The only material facts

from the PSR Istreffi identifies were his possession of a gun and the amount of cocaine for

which he was liable. The Sixth Amendment requires that “any fact (other than a prior

conviction) which is necessary to support a sentence exceeding the maximum authorized by

the facts established by a plea of guilty or a jury verdict must be admitted by the defendant

or proved to a jury beyond a reasonable doubt.” Booker, 543 U.S. at 244 (citing Apprendi

v. New Jersey, 530 U.S. 466, 490 (2000)). Thus, there is no Sixth Amendment violation

where the defendant admitted the fact in question or if the sentence is within the statutory

range justified by the facts admitted or found by a jury. Id. at 233 (holding that under

advisory but not mandatory guidelines, “the selection of particular sentences in response to

differing sets of facts . . . would not implicate the Sixth Amendment.”). Here, Istreffi’s

sentence fell within the statutory range for convictions of non-specified quantities of cocaine

and Istreffi admitted the facts in the PSR upon which the district court based its sentence.

       In United States v. Williams, 235 F.3d 858 (3d Cir. 2000), we addressed a similar

case to the one before us. The district court sentenced defendant to 86 months in prison, after

finding that defendant was liable for more heroin than the amount specified in the indictment.

Id. at 860. The defendant complained that it was violative of his Sixth Amendment rights

                                              -3-
to be held liable for more heroin than the amount he admitted to in the indictment, for which

the sentence was capped at twenty years. Id. Affirming, we held that the issue was not

whether the challenged judicial fact finding exposed the defendant to a higher sentence, but

rather that the sentence imposed exceeded the statutory maximum. Id. at 863 (“a district

court’s sentence that is under the statutory maximum cannot be constitutionally objectionable

under Apprendi.”). Here, even if Istreffi only pled to possessing an unspecified amount of

cocaine, he would have been eligible for a sentence of up to twenty years. See 21 U.S.C. §

841(C) (“In the case of a controlled substance in schedule I or II [cocaine] . . . such person

shall be sentenced to a term of imprisonment of not more than 20 years . . . .”). Though the

district court’s finding may have increased the guidelines range, it is merely “relevant

conduct” under USSG § 1B1.3, and does not implicate the Sixth Amendment. See Williams,

235 F.3d at 864. Therefore, there is no Sixth Amendment violation because Istreffi’s

sentence of 168 months is well below the statutory maximum.

       Furthermore, Istreffi admitted the amount of cocaine during the sentencing phase. For

sentencing purposes, the district court is permitted to accept any undisputed fact in the PSR

as conclusive. See FED. R. CRIM. P. 32(i)(3)(A). The PSR stated that Istreffi had trafficked

in “over five kilograms of cocaine,” and as much as “28 kilograms of cocaine.” In the

calculation of the base offense level, it stated that Istreffi was liable for “15 to 50 kilograms

of cocaine.” The PSR also laid out the government’s bases for the allegations and the

evidence it planned to present to prove the charges. Istreffi filed no written objections as was

his right under FED. R. CRIM. P. 32(f), nor did he make any oral objections to the drug

amount. In fact, he expressly withdrew all objections he might have had. Therefore, the

                                              -4-
district court’s finding of drug quantity was not plain error. See United States v. Buckland,

289 F.3d 558, 569-70 (9th Cir. 2005) (holding that district court’s finding of drug quantity

pursuant to defendant’s admission to amount in PSR was not plain error).

                                             B.

       In United States v. Davis, 407 F.3d 162, 165-66 (3d Cir. 2005) (en banc), we held that

under Booker it is plain error for a district court to sentence a defendant under the mistaken

belief that the Federal Sentencing Guidelines were mandatory. Both Istreffi and the

government agree that, per Davis, the sentence should be vacated and the case remanded for

re-sentencing.

       For the forgoing reasons, we AFFIRM the conviction, but VACATE and REMAND

for re-sentencing consistent with Booker.




                                             -5-
