                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-2-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3594




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"USA v. Santana" (2005). 2005 Decisions. Paper 1074.
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                                                               NOT PRECEDENTIAL


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

                                    Case No: 03-3594
                                 ____________________


                            UNITED STATES OF AMERICA

                                             v.

                                JONATHAN SANTANA,

                                                   Appellant.
                                 ____________________


                    On Appeal from the United States District Court
                                for the District of Delaware
                              District Court No. 01-cr-00073
                    District Judge: The Honorable Joseph J. Farnan, Jr.

                                 ____________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 11, 2005


   Before: ROTH and CHERTOFF,* Circuit Judges, and SHAPIRO,** District Judge.

                                   (Filed June 2, 2005)


   *
     Judge Chertoff resigned prior to the time the opinion was filed. The opinion is filed
by a quorum of the panel. 28 U.S.C. § 46(d).
   **
    Honorable Norma L. Shapiro, Senior District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
                                        OPINION




SHAPIRO, District Judge.

       Jonathan Santana (“Santana”) pled guilty to distribution of crack cocaine base and

was sentenced to 70 months imprisonment. Santana now appeals his sentence.

I. FACTUAL AND PROCEDURAL HISTORY

       On October 9, 2001, Santana was indicted on three counts of distribution of more

than five grams of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii).

He pled guilty to Count II of the indictment, and Counts I and III were dismissed. In the

plea agreement, Mr. Santana admitted distributing approximately 28 grams of crack

cocaine. He also stipulated that the total amount of crack cocaine attributable for

sentencing was over 50 but less than 150 grams. The pre-sentence report set his base

offense under the Sentencing Guidelines (“Guidelines”) at level 32 for his distribution of

77.98 grams, but recommended downward adjustments resulting in a final offense level

of 27 with criminal history category I. The District Court sentenced Mr. Santana within

the Guidelines range to 70 months imprisonment, three years of supervised release, and a

$100.00 special assessment.

       After Mr. Santana was sentenced, the Supreme Court decided Blakely v.

Washington, 124 S.Ct. 2531 (2004), striking down the State of Washington’s sentencing

                                             2
guidelines laws as violative of the Sixth Amendment under Apprendi v. New Jersey, 530

U.S. 466 (2000) (any fact raising the sentence beyond the prescribed statutory maximum

must be submitted to a jury and proved beyond a reasonable doubt). Santana brought this

appeal arguing the Guidelines are unconstitutional under Blakely and Apprendi. After

Santana submitted his appeal, the Supreme Court decided United States v. Booker, 125

S.Ct. 738 (2005), holding the Guidelines unconstitutional unless advisory only. This

court requested and received additional briefing from the parties regarding the effect of

Booker on this appeal.

II. JURISDICTION AND STANDARD OF REVIEW

       The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. This

Court has appellate jurisdiction under 28 U.S.C. § 1291.

       Santana did not object to his sentence in the District Court. Under the plain error

test of Federal Rule of Criminal Procedure 52(b), where there is an error that is plain, and

affects substantial rights, an appellate court may correct an error not raised at trial, but

only if the error seriously affects the fairness, integrity, or public reputation of judicial

proceedings. United States v. Cotton, 535 U.S. 625 (2002); Johnson v. United States,

520 U.S. 461, 466-467 (1997).

                                      III. DISCUSSION

       Because this appeal was pending on direct review when Booker was decided, we

apply the ruling of that case. Under Booker and Apprendi, a sentence may be based on



                                               3
facts admitted by the defendant. Booker, 125 S.Ct. at 756. Because Santana’s sentence

was based on facts admitted by him in the plea agreement, his sentence was not in

violation of the Sixth Amendment. See United States v. Murdock, 398 F.3d 491, 501-502

(6 th Cir. 2005). However, Booker also held that mandatory application of the Guidelines

is unconstitutional. Id. The District Court’s mandatory application of the guidelines was

therefore in error.

       From the record, we cannot determine whether that error had a substantial effect in

determining the sentence. In light of the determination of the judges of this Court that the

sentencing issue is best determined by the District Court in the first instance, we vacate

the sentence and remand for resentencing in accordance with Booker. United States v.

Davis, 397 F.3d 173, 183 (3d Cir. 2005); United States v. Ordaz, 398 F.3d 236, 239 (3d

Cir. 2005).

                                   IV. CONCLUSION

       For the reasons set forth above, we VACATE the judgment of sentence and

REMAND this case for resentencing.




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