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


6-15-2006

USA v. Coleman
Precedential or Non-Precedential: Precedential

Docket No. 05-1348




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                                  PRECEDENTIAL

UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT


               No. 05-1348


    UNITED STATES OF AMERICA

                     v.

          EDWARD COLEMAN
           a/k/a JOHN LONG,

                          Edward Coleman,
                               Appellant



Appeal from the United States District Court
  for the Eastern District of Pennsylvania
 (D.C. Criminal Action No. 04-cr-00097)
District Judge: Honorable Petrese B. Tucker


Submitted Under Third Circuit LAR 34.1(a)
             April 27, 2006
      Before: AMBRO and FUENTES, Circuit Judges,
               and IRENAS,* District Judge

               (Opinion filed: June 15, 2006)

Robert Epstein
  Assistant Federal Defender
David L. McColgin
  Assistant Federal Defender
Maureen Kearney Rowley
  Chief Federal Defender
Federal Court Division
Defender Association of Philadelphia
601 Walnut Street
Suite 540 West - The Curtis Center
Independence Square West
Philadelphia, PA 19106-2414

      Counsel for Appellant

Patrick L. Meehan
  United States Attorney
Robert A. Zauzmer
  Assistant United States Attorney
  Chief of Appeals
Jose R. Arteaga
  Assistant United States Attorney


      *
         Honorable Joseph E. Irenas, Senior District Judge for
the District of New Jersey, sitting by designation.

                              2
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106

       Counsel for Appellee


                OPINION OF THE COURT


AMBRO, Circuit Judge

       Edward Coleman appeals from a judgment of conviction
and sentence imposed by the United States District Court for the
Eastern District of Pennsylvania. He contends first that the
Prosecutorial Remedies and Tools Against the Exploitation of
Children Today Act of 2003 (“PROTECT Act”), Pub. L. No.
108-21, 117 Stat. 650, is unconstitutional insofar as it changed
the structure of the United States Sentencing Commission to
allow the President to appoint all Commission members from
within the Executive Branch, as opposed to the former system
under which at least three members were federal judges. Id. §
401(n) (amending 28 U.S.C. § 991(a)) (hereafter, the “Feeney
Amendment”).1 He also asserts that, because prior convictions


       1
        This amendment, and others attached to the PROTECT
Act, are often collectively referred to as the “Feeney
Amendment” after Representative Tom Feeney, who sponsored
the amendments in the House of Representatives. We refer to

                               3
increased the statutory minimum sentence for his crimes, those
convictions should have been charged in the indictment and
proved to the jury beyond a reasonable doubt, and that the
Government’s failure to do so violated the Sixth Amendment.
We find Coleman’s arguments unpersuasive, and therefore
affirm.

      I. Factual Background and Procedural History

        In June 2003, a Philadelphia police officer stopped
Coleman’s vehicle. As he approached the driver’s side of the
car, the officer saw that Coleman had a gun. The officer ordered
Coleman and the passengers out of the car, but Coleman drove
away at a high rate of speed. He crashed the car shortly
thereafter and fled on foot. When police arrived, they
discovered Coleman’s driver’s license (bearing an alias, “John
Long”), over $1,200 in cash, and a loaded handgun with an
obliterated serial number in the car. Police subsequently located
Coleman at his girlfriend’s house and arrested him. During a
search of his person, police discovered cocaine and the
prescription drug Xanax.

      Coleman was arraigned and released on bail. In
September 2003, police officers observed him driving a car
without a license plate. When they attempted to stop the car,


the particular amendment of 18 U.S.C. § 991(a) at issue here as
the “Feeney Amendment” for simplicity.

                               4
Coleman fled on foot. He was apprehended shortly thereafter,
and in a subsequent search of his vehicle police discovered a
loaded handgun and crack cocaine.

        Coleman was indicted on five counts. The first three
counts stemmed from the June 2003 arrest, and charged him
with possession of a firearm by a convicted felon in violation of
18 U.S.C. § 922(g)(1) and possession of a controlled substance
in violation of 21 U.S.C. § 844. Counts Four and Five stemmed
from the September 2003 arrest, and likewise charged him with
unlawful possession of a firearm and possession of a controlled
substance. Pursuant to Coleman’s motion to sever the
indictment, he was tried on Counts One through Three in July
2004; the jury convicted him on each one. He then pled guilty
to Counts Four and Five.

       At sentencing, the District Court determined that
Coleman had five prior convictions (four for drug trafficking
and one for a violent felony), and thus qualified as an armed
career criminal under 18 U.S.C. § 924(e). This increased the
statutory minimum for his firearm possession offenses to at least
15 years in prison. Id. In light of his designation as an armed
career criminal, the District Court applied U.S.S.G. § 4B1.4 and
correctly calculated a recommended sentencing range for his
firearm possession offenses of 235-293 months in prison. The
Court decided that this advisory range was in accord with the
sentencing factors set forth in 18 U.S.C. § 3553(a), and after
considering those factors and the advisory range, sentenced

                               5
Coleman to 240 months in prison on Counts One and Four (the
firearm possession charges), with a concurrent sentence of 36
months in prison on the remaining drug possession counts.2 He
appeals.

           II. Jurisdiction and Standard of Review

        The District Court had subject matter jurisdiction over
this case under 18 U.S.C. § 3231. We exercise jurisdiction over
Coleman’s appeal pursuant to 28 U.S.C. § 1291 and (to the
extent he contends his sentence was imposed in violation of law)
18 U.S.C. § 3742. Since Coleman raises purely legal issues of
statutory and constitutional interpretation, our review is plenary.
See, e.g., United States v. Singletary, 268 F.3d 196, 199 (3d Cir.
2001).

                          III. Analysis

        At the outset, we note that Coleman does not challenge
the District Court’s calculation of the recommended Guidelines
sentence, or the reasonableness of the Court’s decision to
sentence him within that range. Rather, he contends that the
entire Sentencing Guidelines system is unconstitutional because
the Feeney Amendment allows the President to appoint to the


       2
         The Court also sentenced Coleman to five years of
supervised release upon leaving prison, and a special assessment
of $500.

                                6
Sentencing Commission only members of the Executive Branch.
This, he argues, violates the separation of powers among the
three branches of Government mandated by our Constitution
because it places control over indictment, prosecution, and
sentencing in the hands of the Executive Branch. He also
asserts that, because his prior drug and violent felony
convictions increased the statutory minimum punishment for his
firearm possession offenses, the Sixth Amendment required the
Government to charge his prior convictions in the indictment
and prove them to the jury beyond a reasonable doubt. We
consider each argument in turn.

      A.     Does the Feeney Amendment Violate the
             Separation of Powers?

       The United States Sentencing Commission is an
“independent commission in the judicial branch” composed of
seven voting members selected by the President with the advice
and consent of the Senate. 28 U.S.C. § 991(a). Prior to the
Feeney Amendment in 2003, at least three members of the
Commission were to be judges selected from a list submitted to
the President by the Judicial Conference of the United States.
Id. The Feeney Amendment modified this provision to state that
“no more than three” members may be judges, thus allowing the
President to appoint, if he wishes, only members of the
Executive Branch to the Commission.

      The Commission is charged, inter alia, with drafting and

                              7
promulgating the Sentencing Guidelines, 28 U.S.C. § 994, and
must submit proposed amendments to the Guidelines to
Congress, which then has a specified period of time (at least 180
days) to modify or disapprove them before they become
effective. Id. § 994(p). Guidelines sentence calculations must
fall within the statutory range prescribed by Congress. See id.
§ 994(a) (stating that the Guidelines must be “consistent with all
pertinent provisions of any Federal statute”); U.S.S.G. § 5G1.1
(stating that the Guidelines are inapplicable if the minimum
sentence recommended by the Guidelines is higher than the
statutory maximum, or if the maximum sentence recommended
by the Guidelines is lower than the statutory minimum).

       In Mistretta v. United States, 488 U.S. 361 (1989), the
Supreme Court held that the Sentencing Commission, as it was
then constituted, did not violate the separation of powers. The
Court held that Congress was within constitutional bounds in
delegating to the Commission authority to promulgate the
Guidelines, id. at 374-79, and that the composition of the
Commission (including at least three federal judges) was
constitutional. Id. at 397-408. The Court noted that “Congress’
decision to create an independent rulemaking body to
promulgate sentencing guidelines and to locate that body within
the Judicial Branch is not unconstitutional unless Congress has
vested in the Commission powers that are more appropriately
performed by the other Branches or that undermine the integrity
of the Judiciary.” Id. at 385. It deemed the functions of the
Commission, particularly the promulgation of the Guidelines, to

                                8
be well within the judiciary’s role. The Court noted, for
example, that “the sentencing function long has been a
peculiarly shared responsibility among the Branches of
Government and has never been thought of as the exclusive
constitutional province of any one Branch.” Id. at 390. It
dismissed as “fanciful” the argument that the President’s power
to appoint and remove the Commission’s members gave him
unconstitutional authority over the judiciary. Id. at 409; see id.
at 410 (“We simply cannot imagine that federal judges will
comport their actions to the wishes of the President for the
purpose of receiving an appointment to the Sentencing
Commission.”). Moreover, the Court concluded that the
Commission “is not a court and exercises no judicial power,”
and thus there was no concern that membership on the
Commission would “vest Article III power in nonjudges or
require Article III judges to share their power with nonjudges.”
Id. at 408.

       The Court noted in dicta that “[if] Congress decided to
confer responsibility for promulgating sentencing guidelines on
the Executive Branch, we might face the constitutional questions
whether Congress unconstitutionally had assigned judicial
responsibilities to the Executive or unconstitutionally had united
the power to prosecute and the power to sentence within one
Branch.” Id. at 391 n.17. Coleman seeks to build on this
observation to argue that, since the Feeney Amendment
effectively removed all mandatory judicial input from the
Sentencing Commission (and thus the Guidelines), the result is

                                9
an unconstitutional consolidation of power in the Executive
Branch. See United States v. Pojilenko, 416 F.3d 243, 249 n.6
(3d Cir. 2005) (noting that “the Feeney Amendment’s change in
the composition of the Sentencing Commission may provide an
arguable basis for distinguishing Mistretta,” but rejecting the
argument on plain-error review). He relies heavily on a 2004
District Court decision in the District of Oregon — United
States v. Detwiler, 338 F. Supp. 2d 1166 (D. Or. 2004) — that
is, to our knowledge, the only federal court decision to accept
Coleman’s argument.

       We need not consider whether Detwiler was correctly
decided under the then-mandatory Guidelines regime, because
the Supreme Court’s landmark decision in United States v.
Booker, 543 U.S. 220 (2005), dramatically altered the equation.
Indeed, the District Court’s remedy for the perceived separation
of powers violation in Detwiler — conversion of the mandatory
Guidelines into a non-binding, advisory system, see 338 F.
Supp. 2d at 1182 — is essentially the remedy the Supreme Court
adopted in Booker, albeit for a different constitutional violation.
See Booker, 543 U.S. at 259-61 (excising the requirement in 18
U.S.C. § 3553(b)(1) that the Guidelines be applied mandatorily,
and stating that henceforth the Guidelines are advisory and
should be considered by sentencing courts as one of several
sentencing factors under 18 U.S.C. § 3553(a)).

     Thus, while Coleman’s argument that the Feeney
Amendment unconstitutionally allows the President to control

                                10
sentencing might have been persuasive while the Guidelines
were still mandatory, it is misplaced under the now-advisory
system. Regardless of the composition of the Commission, the
Guidelines it promulgates do not control sentencing; the
Guidelines’ recommended range may be modified or
disregarded by a district court upon consideration of the other
sentencing factors Congress has identified in § 3553(a).

       We also reject Coleman’s argument that the Guidelines,
though advisory, are nonetheless presumptively reasonable and
thus give rise to the same separation of powers concerns (the
argument being, we presume, that the Guidelines are still
mandatory in fact). In United States v. Cooper, 437 F.3d 324
(3d Cir. 2006), we observed that “a within-guidelines sentence
is not necessarily reasonable per se” because such a system
“would come close to restoring the mandatory nature of the
guidelines excised in Booker.” Id. at 331 (emphasis added).
We also declined to “adopt a rebuttable presumption of
reasonableness for within-guidelines sentences.” Id. at 331-32.
Although the Guidelines’ recommendation is one of the factors
to be considered under § 3553(a) — and thus “a
within-guidelines range sentence is more likely to be reasonable
than one that lies outside the advisory guidelines range,” id. at
331(emphasis added) — this does not mean a presumption of
reasonableness attaches to the Guidelines range. Hence, even
assuming for the sake of argument that Coleman’s assertion
might have some force in a Circuit where the Guidelines are
presumptively reasonable, see, e.g., United States v. Mykytiuk,

                               11
415 F.3d 606, 608 (7th Cir. 2005), it is not persuasive here.3

       B.     Were Coleman’s Sixth Amendment Rights
              Violated?

        We next turn to Coleman’s argument that, because his
prior convictions for drug offenses and a violent crime increased
the statutory minimum penalty for his firearm offenses pursuant
to 18 U.S.C. § 924(e), those offenses should have been charged
in the indictment and proved to the jury beyond a reasonable
doubt. He contends that the Government’s failure to do so
violates the Sixth Amendment.

       First, we note that the Government did charge Coleman’s
prior offenses in the indictment. In a Notice of Prior
Convictions attached to the indictment, the grand jury “further
charge[d]” that Coleman committed his firearm offenses “after
having been convicted of serious drug offenses and a violent
felony in . . . Pennsylvania.” The Notice then listed the five
prior convictions. This does not completely dispose of


       3
          Nor did the District Court apply the Guidelines as if
they were presumptively reasonable. It sentenced Coleman two
weeks after the Supreme Court’s decision in Booker, and noted
that the Guidelines were advisory. Moreover, it carefully
considered the other relevant § 3553(a) factors before deciding
that the sentence of 240 months was justified on the firearm
possession counts.

                               12
Coleman’s argument, however, because the Government did not
prove the prior convictions to the jury beyond a reasonable
doubt. As we explain below, the Government is not required to
do so (indeed, it is not required to charge them in the
indictment) under current Supreme Court precedent.

        This issue is controlled by Almendarez-Torres v. United
States, 523 U.S. 224 (1998), which held that prior convictions
that increase the statutory maximum for an offense are not
elements of the offense and thus may be determined by the
District Court by a preponderance of the evidence. See id. at
243 (“[R]ecidivism . . . is a traditional, if not the most
traditional, basis for a sentencing court’s increasing an
offender’s sentence.”).4 This holding was preserved in
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than
the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.”
(emphasis added)), and Booker, 543 U.S. at 244 (same).
Moreover, we have held expressly that the Almendarez-Torres
exception survived Booker and its antecedents. See United


       4
          Although § 924(e) imposes an enhanced statutory
minimum punishment for firearm possession, it (like an
enhanced statutory maximum) raises the allowed punishment for
the offense, and the Supreme Court has therefore applied
Almendarez-Torres to sentences under this section. See Shepard
v. United States, 544 U.S. 13, 16, 25 (2005).

                                13
States v. Ordaz, 398 F.3d 236, 241 (3d Cir. 2005) (noting “a
tension between the spirit of Blakely [v. Washington, 542 U.S.
296 (2004),] and Booker that all facts that increase the sentence
should be found by a jury and the Court’s decision in
Almendarez-Torres, which upholds sentences based on facts
found by judges rather than juries,” but concluding that “[t]he
holding in Almendarez-Torres remains binding law, and nothing
in Blakely or Booker holds otherwise”).

       Coleman contends, however, that the Supreme Court’s
decision in Shepard v. United States, 544 U.S. 13 (2005),
decided two weeks after our decision in Ordaz, calls into
question the continuing validity of Almendarez-Torres, and he
urges us to rely on Shepard as authority to limit Almendarez-
Torres to its facts and deem it inapplicable to his Sixth
Amendment challenge. We rejected precisely this argument in
a non-precedential opinion earlier this term. See United States
v. Francisco, No. 05-1105, 165 Fed. Appx. 144 (3d Cir. 2006).
We have reviewed the reasoning in Francisco and find it
persuasive, and thus adopt it here.

       As we noted in Francisco, Shepard concerned whether a
prior burglary conviction was a “violent felony” that triggered
the enhanced statutory minimum under 18 U.S.C. § 924(e). The
Supreme Court held that, in determining whether the burglary
was a violent felony, the sentencing court had to rely on
charging documents, elements of offenses, plea colloquies, and
express findings by the trial judge, and could not look to police

                               14
reports or complaint applications. Shepard, 544 U.S. at 16, 25-
26. A plurality of the Court held that, in a state where the
statutory definition of burglary is limited to the elements of
“generic” burglary,4 “a judicial finding of a disputed prior
conviction is made on the authority of Almendarez-Torres.” Id.
at 25. The plurality contrasted this to states where the statutory
definition of burglary encompasses more than the “generic”
offense. In these situations, considering sources like police
reports or complaints to determine whether the burglary at issue
is nonetheless “generic” would be “too far removed from the


       4
           Because § 924(e)(2) states simply that “burglary” is
per se a violent felony, the Supreme Court has distinguished
between “generic” burglary (i.e., “roughly corresponding to the
definitions of burglary in a majority of the States’ criminal
codes,” which satisfies § 924(e)(2)) and non-“generic” burglary
(i.e., deviations from the typical definition of burglary, which
need not qualify as “burglary” within the meaning of
§ 924(e)(2)). Taylor v. United States, 495 U.S. 575, 589 (1990).
As the Court explained, such a distinction is necessary because
it is “implausible that Congress intended the meaning of
‘burglary’ for purposes of § 924(e) to depend on the definition
adopted by the State of conviction. That would mean that a
person convicted of unlawful possession of a firearm would, or
would not, receive a sentence enhancement based on exactly the
same conduct, depending on whether the State of his prior
conviction happened to call that conduct ‘burglary.’” Id. at 590-
91.


                               15
conclusive significance of a prior judicial record, and too much
like the findings subject to Jones[ v. United States, 526 U.S. 227
(1999)]5 and Apprendi, to say that Almendarez-Torres clearly
authorizes a judge to resolve the dispute.” Id.

        In dissent, Justice O’Connor, joined by Justices Kennedy
and Breyer, worried that “today’s decision reads Apprendi to
cast a shadow possibly implicating recidivism determinations,
which until now had been safe from such formalism.” Id. at 37
(O’Connor, J., dissenting). Justice Thomas, who criticized the
Almendarez-Torres exception in his concurring opinion in
Apprendi, see 530 U.S. at 520-21 (Thomas, J., concurring),
repeated his view that “Almendarez-Torres . . . has been eroded
by this Court’s subsequent Sixth Amendment jurisprudence, and
a majority of the Court now recognizes that Almendarez-Torres
was wrongly decided. The parties do not request it here, but in

       5
           In Jones, the Supreme Court held that the federal
carjacking statute, 18 U.S.C. § 2119, sets out three separate
crimes based on varying degrees of aggravation (the elements of
which must be charged in the indictment and proved to the jury
beyond a reasonable doubt), rather than a single crime with three
possible maximum sentences based on different degrees of
aggravation (which could be determined by a preponderance of
the evidence at sentencing), and noted that the question was
different from that confronted in Almendarez-Torres because
that decision “rested in substantial part on the tradition of
regarding recidivism as a sentencing factor, not as an element to
be set out in the indictment.” Jones, 526 U.S. at 238-29, 248-49.

                               16
an appropriate case, this Court should consider Almendarez-
Torres’ continuing viability. ” Shepard, 544 U.S. at 27-28
(Thomas, J., concurring) (citations omitted). The plurality
simply stated that “[i]t is up to the future to show whether the
dissent is good prophesy” with regard to the continuing viability
of Almendarez-Torres. Id. at 26 n.5.

       Our observation in Francisco is apt:

                      The various opinions in
              Shepard appear to agree on one
              thing: the door is open for the Court
              one day to limit or overrule
              Almendarez-Torres. But that day
              has not yet come, and we are well
              aware of the Supreme Court’s
              admonition that “‘[i]f a precedent
              of [the Supreme] Court has direct
              application in a case, yet appears to
              rest on reasons rejected in some
              other line of decisions, the Court of
              Appeals should follow the case
              which directly controls, leaving to
              [the Suprem e] C ourt the
              prerogative of overruling its own
              decisions.’”

Francisco, 165 Fed. Appx. at 148 (quoting Agostini v. Felton,

                               17
521 U.S. 203, 237 (1997)). Therefore, we hold that Shepard did
not affect the continuing validity of Almendarez-Torres, and we
join the other Circuit Courts that have held likewise. See, e.g.,
United States v. Childs, 403 F.3d 970, 972 (8th Cir. 2005);
United States v. Schlifer, 403 F.3d 849, 852 (7th Cir. 2005);
United States v. Moore, 401 F.3d 1220, 1224 (10th Cir. 2005).

                      *    *   *    *   *

        In sum, we hold that the Feeney Amendment, insofar
as it changed the composition of the United States Sentencing
Commission, does not violate our Constitution’s separation of
powers. In addition, as the Supreme Court’s decision in
Almendarez-Torres remains good law after Shepard,
Coleman’s argument regarding the Government’s failure to
prove his prior convictions to the jury beyond a reasonable
doubt is unpersuasive. We therefore affirm the judgment of
conviction and sentence.




                               18
