                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-30-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2572




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Recommended Citation
"USA v. Stitt" (2008). 2008 Decisions. Paper 1104.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1104


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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      ___________

                                      No. 06-2572
                                      ___________


                           UNITED STATES OF AMERICA

                                            vs.

                                   ANTONIO STITT,

                                           Appellant
                                      ___________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                            (D.C. Criminal No. 03-cr-00259-1)
                      District Judge: The Honorable Alan N. Bloch
                                      ___________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    May 21, 2008

                  BEFORE: SMITH and NYGAARD, Circuit Judges,
                        and STAFFORD,* District Judge.


                                  (Filed: May 30, 2008)




        *
          Honorable William H. Stafford, Jr., Senior District Judge for the United States
District Court for the Northern District of Florida, sitting by designation.
                                       ___________

                               OPINION OF THE COURT
                                    ___________


NYGAARD, Circuit Judge.

       This is an appeal from a resentence imposed after a Booker remand. The

conviction in this case arose from a guilty plea on drug charges. Stitt filed a timely

appeal.

       Because we write exclusively for the parties, who are familiar with the facts and

proceedings below, we will not revisit them here. Pursuant to Anders v. California, 386

U.S. 738 (1967), Stitt’s appointed counsel has examined the record, concluded that there

are no non-frivolous issues for review, and requested permission to withdraw.

       This request was accompanied by a brief identifying one issue as arguably

possessing merit: whether prior convictions, not included in the Indictment nor admitted

to by the defendant, can lawfully be considered in determining his sentence. Stitt argued

that the use of his prior convictions to determine his sentence violated his Sixth

Amendment and due process rights. He asserted that Almendarez-Torres v. United States,

523 U.S. 224 (1998), which permits consideration of his prior convictions, has been “all

but overruled” and should not be applied in this case.

       Stitt’s counsel, however, concedes that this Supreme Court precedent remains

binding in this instance. Additionally, counsel acknowledges that , even post-Booker, the



                                              2
District Court does not have authority to impose a sentence lower than the statutory

minimum, which in this case was twenty years.

       Accordingly, we find that there are no non-frivolous arguments raised in this

appeal. We will grant counsel's motion to withdraw and we will affirm the judgment of

the District Court.




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