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


5-25-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2751




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"USA v. Spivey" (2006). 2006 Decisions. Paper 1041.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1041


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                  NOT PRECEDENTIAL

                          IN THE UNITED STATES COURT
                                   OF APPEALS
                              FOR THE THIRD CIRCUIT


                                      NO. 05-2751


                            UNITED STATES OF AMERICA

                                            v.

                                 LAWRENCE SPIVEY
                                a/k/a DARRYL SPIVEY

                                    Lawrence Spivey,
                                       Appellant



                    On Appeal From the United States District Court
                       For the Eastern District of Pennsylvania
                         (D.C. Crim. Action No. 03-cr-00562)
                       District Judge: Hon. Michael M. Baylson


                    Submitted Pursuant to Third Circuit LAR34.1(a)
                                    May 19, 2006

                 BEFORE: McKEE and STAPLETON, Circuit Judges,
                         and McCLURE,* District Judge

                                  (Filed: May 25, 2006)




* Hon. James F. McClure, Jr., United States District Judge for the Middle District of
Pennsylvania, sitting by designation.
                                  OPINION OF THE COURT




STAPLETON, Circuit Judge:


       In June 2002, Lawrence Spivey was stopped by police officers because he

resembled a suspect in a bank robbery. In the course of a pat down, a loaded handgun

was discovered in Spivey’s back pocket. As a convicted felon, Spivey was barred from

carrying a firearm under federal law. In January 2004, Lawrence Spivey pled guilty to

felony possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

       In April 2004, Spivey was sentenced under the Sentencing Guidelines. At his

sentencing, the District Court took account of two prior convictions for drug distribution,

the fact that the instant offense occurred while Spivey was on parole, and the fact that the

instant offense occurred within two years of his release from prison. The District Court

also took account of Spivey’s acceptance of responsibility. The Guidelines calculation,

not disputed by Spivey, yielded a recommended sentencing range of 57 to 71 months.

The District Court sentenced Spivey to 66 months of imprisonment. He appealed to this

Court, contending that the District Court wrongly refused to suppress the evidence

obtained in the initial search.

       In January 2005, the Supreme Court decided United States v. Booker, 543 U.S. 220


                                             2
(2005), which, as we have had numerous occasions to explain, consisted of two holdings.

First, the Court held that the Sentencing Guidelines were unconstitutional insofar as they

required district courts to impose mandatory sentencing enhancements based on judge-

found facts. Booker, 543 U.S. at 244 (opinion of Stevens, J.). Second, the Court found

that excising 18 U.S.C. § 3553(b)(1) – the provision that mandated that district courts

impose sentences within Guidelines ranges – remedied this constitutional violation.

Booker, 543 U.S. at 245 (opinion of Breyer, J.). These holdings were applied to all cases

on direct review. Id. at 268. We subsequently held that “defendants sentenced under the

previously mandatory regime whose sentences are being challenged on direct appeal may

be able to demonstrate plain error and prejudice” and thus “[w]e will remand such cases

for resentencing.” United States v. Davis, 407 F.3d 162, 165 (3d Cir. 2005).

       Spivey’s case was among those cases pending on direct appeal that were remanded

for resentencing in accordance with the newly-advisory Sentencing Guidelines. On

resentencing, Spivey’s counsel argued that the proper Sentencing Guidelines range was

21-27 months because the first holding of Booker precluded the District Court from using

judge-found facts to enhance his sentence, and the second holding of Booker would, if

applied to him, violate the principles of fair notice embodied in the Ex Post Facto Clause

and the Due Process Clause of the Constitution. The District Court rejected this argument

and found the now-advisory sentencing calculation yielded the same range as when the

Guidelines were mandatory. The District Court imposed a sentence of 62 months –

reducing the sentence based on Spivey’s good behavior in prison. Spivey appeals from

                                             3
this sentence.

       While the Ex Post Facto Clause bars only legislatures from retroactively

expanding the scope of criminal laws, courts are “barred by the Due Process Clause from

achieving precisely the same result by judicial construction.” Bouie v. City of Columbia,

378 U.S. 347, 353 (1964). This rule derives from “core due process concepts of notice,

foreseeability, and, in particular, the right to fair warning.” Rogers v. Tennessee, 532

U.S. 451, 459 (2001). It applies with equal force to retroactive expansions in criminal

liability and to “after-the-fact increases in the degree of punishment.” Helton v. Fauver,

930 F.2d 1040, 1045 (3d Cir. 1991). Judicial constructions that are “unexpected and

indefensible by reference to the law which had been expressed prior to the conduct in

issue” must not be given retroactive effect. Rogers, 532 U.S. at 462.

       Spivey argues that the remedial holding of Booker – by removing the mandated

maximum of the Guidelines range – exposed him to the full statutory range of punishment

rather than the smaller Guidelines range and was sufficiently “unexpected and

indefensible by reference to the law” in existence in 2002 so that we may not give this

portion of the decision retroactive effect. Thus, he argues that a combination of the Sixth

Amendment and the Due Process Clause requires that he be sentenced to no more than the




                                             4
maximum in the range as calculated under the Sentencing Guidelines based only on the

facts either proved to a jury or admitted.

       Spivey’s argument fails because he is asking us to reverse precedent we are

powerless to reverse.1 In Booker, the Supreme Court instructed that courts “must apply

today’s holdings – both the Sixth Amendment holding and our remedial interpretation of

the Sentencing Act – to all cases on direct review.” Booker, 543 U.S. at 268. By opting

for this remedy, explicitly rejecting the remedy of restricting sentencing entirely to jury-

found facts, and instructing that this remedy be applied to all cases on direct review, the



   1
     Spivey’s ex post facto claim may fail for other reasons as well. It is unclear, for
example, how Booker worked to Spivey’s detriment. He received a 66 month sentence
under the mandatory sentencing regime, and a 62 month sentence under the advisory
sentencing regime. “It is axiomatic that for a law to be ex post facto it must be more
onerous than the prior law.” Dobbert v. Florida, 432 U.S. 282, 294 (1977). It is true that
“one is not barred from challenging a change in the penal code on ex post facto grounds
simply because the sentence he received under the new law was not more onerous than
that which he might have received under the old.” Id. at 300. Defendants can challenge
changes in sentencing laws that make it either more difficult for the court to impose a
shorter sentence than the defendant received or easier to impose the longer sentence that
the defendant received. See Lindsey v. Washington, 301 U.S. 397; Miller v. Florida, 482
U.S. 423 (1987). But it is unclear whether a new sentencing regime that imposes the
same sentence based on suggestion rather than mandate works to “make more
burdensome the punishment for a crime, after its commission.” Collins v. Youngblood,
497 U.S. 37, 42 (1990). The Court has also instructed that no ex post facto claim could
be raised by a defendant sentenced to death based on a change in the capital punishment
law related to life sentences, since “the change has had no effect on the defendant in the
proceedings of which he complains.” Id. Here, too, Spivey is complaining about a
sentence he did not receive – a sentence exceeding the previously mandated maximum
under the Guidelines. But because the notice issue is clearly controlled by precedent, we
need not decide whether a defendant can make out an ex post facto claim based on the
unutilized discretion of the District Court to impose a sentence above the previously
mandated maximum.
                                              5
Booker Court at least implicitly decided that no fair notice problem was presented.

Moreover, our Court has already rejected this very argument:

       [Defendant’s] ex post facto argument fails for two reasons. First, the
       Supreme Court in Booker clearly instructed that both of its holdings should
       be applied to all cases on direct review. Second, [the defendant] had fair
       warning that participating in a money laundering conspiracy and engaging
       in substantive money laundering was punishable by a prison term of up to
       20 years under 18 U.S.C. § 1956(a). [Defendant] also had fair warning that
       his sentence could be enhanced based on judge-found facts as long as the
       sentence did not exceed the statutory maximum.

United States v. Pennavaria, 2006 WL 1061956 (Apr. 24, 2006) (citations omitted).

       As we pointed out in Pennavaria, nine other Courts of Appeal have similarly held

that the remedy adopted by the Supreme Court in Booker does not deprive a defendant of

the fair notice required by the Due Process Clause. By demanding that his sentence

conform to a range calculated under the Sentencing Guidelines based only on jury-found

or admitted facts, Spivey advocates a different remedy for the Sixth Amendment violation

identified by the Supreme Court in Justice Stevens’s opinion in Booker than the remedy

chosen by the Supreme Court in Justice Breyer’s opinion in Booker. We cannot find that

the Due Process Clause requires this result.2



   2
     Because precedent controls this question, we do not need to confront the second
portion of Spivey’s argument. Spivey and the government dispute whether the facts
found by the District Court fall into the exception the Supreme Court has identified for
“the fact of a prior conviction.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000);
Booker, 543 U.S. at 244. Because no Due Process Clause violation is presented by the
use of judge-found facts in the advisory capacity in which they were used in this case, we
need not decide whether these facts were of the sort of sentence-enhancing facts that, if
found by a judge rather than a jury, would violate the Sixth Amendment jury right.
                                                6
We will affirm the judgment of the District Court.




                                     7
