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


12-15-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4909




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 05-4909


                          UNITED STATES OF AMERICA

                                           v.

                                  AHMED WALKER
                                    a/k/a Amelios
                                     a/k/a Ammo

                                     Ahmed Walker,

                                                Appellant


                     On appeal for the United States District Court
                        for the Middle District of Pennsylvania
                           (District Court No. 00-cr-00300-3)
                    District Judge: The Honorable Sylvia H. Rambo


                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 December 13, 2006

                      Before: SMITH, and ROTH, Circuit Judges,
                              and YOHN, District Judge*

                              (Filed: December 15, 2006)




      *
       The Honorable William H. Yohn, Jr., Senior United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.

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                                         OPINION



SMITH, Circuit Judge.

       Ahmed Walker was convicted by a jury of five criminal offenses involving

firearms, drugs, and drug trafficking. The United States District Court for the Middle

District of Pennsylvania sentenced Walker to 681 months. We affirmed his conviction,

but vacated his sentence and remanded for resentencing in accordance with the Supreme

Court’s decision in United States v. Booker, 543 U.S. 220 (2005). See United States v.

Walker, 136 Fed. Appx. 524 (3d Cir. 2005).

       On remand, the District Court imposed a sentence of 622 months. Walker was

sentenced to 240 months on count one for conspiracy to possess, to brandish, and to

discharge a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. §

924(c)(1)(A) and § 924(o). The District Court imposed a sentence of 262 months on

counts five and six, to be served concurrently with the sentence on count one, for

conspiring to distribute and for distributing and possessing with the intent to distribute

more than 50 grams of crack cocaine in violation of 21 U.S.C. § 846 and § 841(a)(1). A

mandatory minimum of 60 months was imposed on count three for possessing firearms on

July 12, 2000, in furtherance of a drug trafficking crime in violation of 18 U.S.C. §

924(c). A mandatory minimum of 300 months was imposed on count four for violating

18 U.S.C. § 924(c) on July 18, 2000. Consistent with statutory law, the mandatory

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minimum sentences imposed for counts three and four were to run consecutive to the

other sentences. Thus, Walker had to serve 262 months initially, followed by a

mandatory minimum of 60 months, followed by a final term of imprisonment of 300

months, totaling 622 months.

       Walker filed a timely appeal. The District Court exercised original jurisdiction

pursuant to 18 U.S.C. § 3231. Appellate jurisdiction exists under 28 U.S.C. § 1291 and

18 U.S.C. § 3742(a). See United States v. Cooper, 437 F.3d 324, 327-28 (3d Cir. 2006).

       Walker raises two arguments on appeal. First, he asserts that his sentence is

unreasonable because the District Court in imposing its sentence failed to give

meaningful consideration to the factors enumerated in 18 U.S.C. § 3553(a). Second,

Walker challenges his sentence on counts one, five, and six, contending that his guideline

range was incorrectly based on quantities of marijuana, powder cocaine, and heroin that

were not found by a jury, as well as a leadership enhancement that was not determined by

a jury. Walker submits that ex post facto principles and due process considerations

precluded the District Court from sentencing him based on facts that were not found by a

jury. Thus, Walker submits that his base offense level should have been computed solely

on the jury’s finding that his offense involved 50 grams or more of crack cocaine.

Whether a sentence violates the United States Constitution is a legal issue subject to

plenary review. United States v. Williams, 235 F.3d 858, 861 (3d Cir. 2000).

       Walker’s assertion that the District Court failed to properly calculate his offense

level for counts one, five, and six rests in part on our earlier decision affirming his

                                               3
conviction and vacating his sentence. See Walker, 136 Fed. Appx. at 527. There, Walker

relied on the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000),

and asserted that the District Court erred by calculating his base offense level by

considering evidence of other drug quantities not found by a jury. We agreed with

Walker that “this was plain error under Booker” and vacated his sentence, citing as

authority our en banc decision in United States v. Davis, 407 F.3d 162, 164 (3d Cir. 2005)

(en banc). According to Walker, our earlier disposition required the District Court at

resentencing to compute his base offense level solely on the quantity of crack cocaine

found by the jury.

       Contrary to Walker’s assertion, we did not direct the District Court to compute his

base offense level solely on the amount of crack cocaine found by the jury. We vacated

the original sentence because the District Court had engaged in judicial fact finding that

resulted in a sentence greater than the maximum authorized under the then mandatory

guideline regime. Thus, remand for resentencing under an advisory guideline regime

consistent with Booker’s remedial opinion was necessary. See Walker, 136 Fed. Appx. at

527.

       After Booker, “district courts may fact-find to increase sentences beyond the

Guidelines range [calculated solely on facts admitted by a defendant or proved to a jury]

provided [the range is] within the statutory minimum and maximum dictated by the

United States Code . . . .” United States v. Gunter, 462 U.S. 237, 241 (3d Cir. 2006).

Thus, the District Court’s fact-finding on remand as to the quantity of drugs was not

                                             4
reversible error.

          Walker’s argument that ex post facto principles and due process considerations

require resentencing based only on the facts proven to a jury or admitted by the defendant

is not persuasive either. In United States v. Pennavaria, 445 F.3d 720 (3d Cir. 2006), we

rejected the defendant’s argument that these same constitutional principles precluded

resentencing him under an advisory guideline scheme which would allow consideration

of facts beyond those to which he admitted during his guilty plea colloquy. Id. at 723.

We explained that “Booker clearly instructed that both of its holdings should be applied

to all cases on direct review” and that “Pennavaria had fair warning” that his conduct

would result in punishment up to the statutory maximum for the offense of conviction.

Id. Thus, we held that “application of Booker’s remedial holding to cases pending on

direct review does not violate the ex post facto principle of the Due Process Clause.” Id.

at 724.

          Walker’s contention that his sentence is unreasonable because the District court

failed to adequately consider the factors set out in 18 U.S.C. § 3553(a) also lacks merit.

The District Judge stated after imposing sentence that she had adopted the presentence

report and adjusted Walker’s offense level upwards by two points based on his role in the

offense. As support for this adjustment, the District Judge cited the testimony by

witnesses that they not only sold drugs for Walker, but also acquired guns for him. She

pointed out that Walker distributed two of the firearms to others in the conspiracy.

          The District Judge further explained that she imposed, contrary to the original

                                                5
sentence, a term of imprisonment on counts five and six at the lower end of the guideline

range, i.e., 262 months, as that was “adequate to address the sentencing objectives.” The

District Judge pointed out that Walker “committed the instant offense while on bail and

awaiting trial on two separate matters in Lebanon County Court,” which provides support

for the District Court’s decision not to sentence Walker below the lower parameter of 262

months. In addition, the District Judge reasoned that the guideline range had not

accounted for the injury sustained by the two year old child or the property damage to the

apartment complex. These explanations reflect that the District Judge “gave meaningful

consideration to” the factors enumerated in § 3553(a). See Cooper, 437 F.3d at 329.

Accordingly, we will affirm the judgment of the District Court.




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