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


6-16-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4264




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Recommended Citation
"USA v. Newman" (2006). 2006 Decisions. Paper 886.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/886


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                                                               NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                    No. 05-4264
                                    ___________

                          UNITED STATES OF AMERICA

                                            v.

                               PRAYLOR NEWMAN,

                                         Appellant
                                    ___________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                               (D.C. No. 02-cr-00539-1)
                      District Judge: Honorable J. Curtis Joyner
                                     ___________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 15, 2006

           Before: FISHER, CHAGARES and REAVLEY,* Circuit Judges.

                                 (Filed June 16, 2006)
                                     ___________

                                     OPINION
                                    ___________




      *
        The Honorable Thomas M. Reavley, United States Circuit Judge for the Fifth
Circuit, sitting by designation.
REAVLEY, Circuit Judge.

       Praylor Newman appeals his sentence. He argues that: (1) his sentence was

unreasonable under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L.Ed.2d

621 (2005) because the District Court did not sufficiently articulate its consideration of

the sentencing factors set forth in 18 U.S.C. § 3553(a); (2) the District Court erred in

using his three prior burglary and three prior drug convictions to enhance his sentence

because those convictions had not been proven to a jury beyond a reasonable doubt; and

(3) the government lacked the sufficient proof required under Shepard v. United States,

544 U.S. 13, 125 S. Ct. 1254, 161 L.Ed.2d 205 (2005) to establish that his pleas to three

burglaries under Pennsylvania’s non-generic burglary statute brought him within the

ambit of the Armed Career Criminal Act (ACCA). For the reasons provided below, we

will affirm. We presume the parties’ familiarity with the facts and procedural history,

which we include only as necessary to explain our decision.

                                              I.

       Newman’s advisory sentencing guideline range was determined to be 235 to 293

months. The District Court sentenced Newman to 293 months. Newman argues that his

293 month sentence was unreasonable under Booker because the District Court did not

sufficiently articulate its consideration of the sentencing factors set forth in 18 U.S.C.

§ 3553(a). We have jurisdiction to review sentences for reasonableness under 18 U.S.C.

§ 3742(a)(1). See United States v. Cooper, 437 F.3d 324, 327 (3d Cir. 2006). When



                                              2
reviewing a district court's sentence, we must satisfy ourselves that it considered the

relevant sentencing factors set forth in 18 U.S.C. § 3553(a). Id. at 329. While a court is

not required to discuss or make findings as to each of the § 3553(a) factors, the record

must demonstrate that it gave “meaningful consideration” to the factors and took them

into account in sentencing. Id.

       In this case, the relevant § 3553(a) factors are:

       (1) the nature and circumstances of the offense and the history and
       characteristics of the defendant;
       (2) the need for the sentence imposed–
               (A) to reflect the seriousness of the offense, to promote
               respect for the law, and to provide just punishment for the
               offense;
               (B) to afford adequate deterrence to criminal conduct;
               (C) to protect the public from further crimes of the defendant;
               and
               (D) to provide the defendant with needed educational or
               vocational training, medical care, or other correctional
               treatment in the most effective manner;
               (3) the kinds of sentences available;
               (4) the kinds of sentence and the sentencing range established
               for . . . the applicable category of offense committed by the
               applicable category of defendant as set forth in the guidelines.
               ...

18 U.S.C. § 3553(a); see Cooper, 437 F.3d at 329. Where the court imposes a sentence

within the applicable sentencing guidelines range, that sentence is not considered

reasonable per se, but such a sentence is more likely to be reasonable than a sentence

outside the sentencing guidelines range. Cooper, 437 F.3d at 331.




                                              3
       Newman does not explain what factors the District Court failed to consider.

Instead, he makes the same argument he made to the District Court at his sentencing –

that the majority of his “serious” prior convictions occurred before the age of twenty and

there “is substantial empirical evidence that recidivism decreases significantly with the

progression and maturation of age.” The District Court considered this argument in

assessing Newman’s sentence. We are satisfied that the record as a whole demonstrates

the District Court's meaningful consideration of both the § 3553(a) factors and the issues

raised by Newman’s counsel.

                                             II.

       Newman next argues that the District Court erred in using his three prior burglary

and three prior drug convictions to enhance his sentence because those convictions had

not been proven to a jury beyond a reasonable doubt. In Almendarez-Torres v. United

States, 523 U.S. 224, 243, 118 S. Ct. 1219, 1230-31, 140 L.Ed.2d 350 (1998), the

Supreme Court concluded that prior convictions which serve to increase the statutory

maximum for an offense are not elements of the offense, and therefore, may be

established by the sentencing judge by a preponderance of the evidence. This Court has

previously held that Almendarez-Torres remains good law despite any tensions between

that decision and the Supreme Court's later pronouncements in Shepard, Booker, and

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L.Ed.2d 403 (2004). United

States v. Ordaz, 398 F.3d 236, 240-41 (3d Cir. 2005). Thus, Newman’s argument is



                                             4
foreclosed by circuit precedent and has no merit unless and until the Supreme Court

overrules Almendarez-Torres.

                                             III.

       Newman finally argues that the government lacked the sufficient proof required

under Shepard to establish that his pleas to three burglaries under Pennsylvania’s non-

generic burglary statute qualified him under the ACCA. Newman’s argument is

unavailing because he stipulated on the record at his first sentencing that his three prior

burglaries were of buildings and qualified him as an armed career criminal.

                                             IV.

       For the foregoing reasons, we will AFFIRM the District Court’s judgment of

sentence.




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