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


11-16-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1929




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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-1929


                           UNITED STATES OF AMERICA

                                           v.

                                    MARC SYKES,

                                                              Appellant


                    On Appeal from the United States District Court
                           for the District of New Jersey
                             (D.C. Crim. No. 03-00678)
                     Honorable Mary Little Cooper, District Judge


                       Submitted under Third Circuit LAR 34.1(a)
                                  November 9, 2006

          BEFORE: SLOVITER, GREENBERG, and COWEN, Circuit Judges

                              (Filed: November 16, 2006)


                              OPINION OF THE COURT


GREENBERG, Circuit Judge.

      Appellant Marc Sykes appeals from the judgment of conviction and sentence

entered on March 15, 2005, in this criminal case. A grand jury indicted Sykes for

conspiracy to distribute more than 50 grams of crack cocaine and more than 500 grams of
cocaine in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. The probation office

determined that Sykes’ base offense level was 32, but that he was entitled to a 3-level

reduction for acceptance of responsibility thus reducing his total offense level to 29.

However, inasmuch as Sykes was a career offender as defined in U.S.S.G. § 4B1.1 his

total offense level ultimately was determined to be 34. That total offense level, when

coupled with his criminal History Category of VI, resulted in an advisory range of 262 to

327 months of imprisonment.

       Sykes objected to the calculation of the advisory range for two reasons. The

reason on which he largely focuses his brief is that his guideline range was predicated on

what he conceived was the unfairness in the differential between offense levels for crack

and powder cocaine violations, a crack violation being treated more severely. See United

States v. Gunter, 462 F.3d 237 (3d Cir. 2006). The other reason was that he objected to

being categorized as a career offender, a very significant determination as it resulted in a

5-level increase in his total offense level. The court, however, overruled his objections.

Nevertheless, the court in sentencing Sykes awarded him a 90-month reduction from the

bottom of his sentencing level pursuant to U.S.S.G. § 5K1.1 for his cooperation and

imposed a custodial sentence of 172 months to be followed by a 5-year term of supervised

release. In addition, the court fined Sykes $1000. Sykes appeals, contending that the

court erred “when it refused to consider and to lower the sentence because of the crack

cocaine [offense level] disparity” and the court erred when it “increased the base offense



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level pursuant to U.S.S.G. § 4B1.1 when [a] jury did not make . . . [the] finding [with

respect to his prior convictions] and [he] did not stipulate to the status of career offender.”

Appellant’s br. at 1. The district court had jurisdiction under 18 U.S.C. § 3231 and we

have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

       We consider Sykes’ objections in the reverse order from the way he stated them.

First, as the parties agree, we exercise de novo review over the career offender issue. See

United States v. Pojilenko, 416 F.3d 243, 246 (3d Cir. 2005). Exercising such review, we

reject Sykes’ career offender contention for several reasons. As Sykes points out, the

court found that he “had the two required prior convictions” for the career offender

categorization. Appellant’s br. at 22. Yet, rather than contending that he did not have

these convictions, he indicates that he “did not stipulate to these convictions and a jury

did not make these findings.” Id. In fact, on the record it is clear that the findings were

correct.

       We also note that the court sentenced Sykes after the Supreme Court decided

United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005), and thus the court in this

case correctly treated the guidelines as advisory. In the circumstances, the court was

authorized to make the findings with respect to Sykes’ convictions. See United States v.

Cooper, 437 F.3d 324, 330 (3d Cir. 2006). Next, even under Apprendi v. New Jersey,

530 U.S. 466, 120 S.Ct. 2348 (2000), the case that was the foundation for the holdings in

Booker which have lead to the treatment of the guidelines as advisory, the rule that “any



                                              3
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,” id. at 490, 120 S.Ct. at

2362-63, was subject to the exception that it did not apply to “the fact of a prior

conviction,” id. at 490, 120 S.Ct. at 2362. There is no doubt that the prior conviction

exception remains good law binding in this court. See United States v. Hill, 411 F.3d

425, 426 n.1 (3d Cir. 2005). Moreover, Sykes does not even contend that his

categorization as a career offender increased the penalty imposed for his conviction

beyond the penalty that in the absence of the categorization otherwise would have been

the maximum that could be imposed. Lastly, Sykes does not challenge the statement in

his presentence report that the maximum sentence in this case is life imprisonment and in

the district court he acknowledged as much. Inasmuch any of the points to which we

refer, in itself, would require that we reject Sykes’ career offender contention, certainly in

concert, they have that effect.

       Next we consider Sykes’ crack cocaine argument. We take no position on Sykes’

argument that he is entitled to relief on the basis of the perceived unfair distinction

between crack and powder cocaine in the sentencing guidelines. Rather, we think that the

district court should have the opportunity to consider that point in the first instance in

light of our recent opinion in Gunter, 462 F.3d 237, decided more than one year after the

court sentenced Sykes, and in light of the facts of this case.

       For the foregoing reasons, although we agree with the district court’s disposition



                                              4
of the career offender issue, we nevertheless will vacate the judgment of conviction and

sentence entered March 15, 2005, and will remand the case to the district court for

resentencing.




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