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


5-15-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2626




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"USA v. Bey" (2006). 2006 Decisions. Paper 1107.
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                                                      NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                            No. 05-2626


                 UNITED STATES OF AMERICA




                                 v.

                           JEFFREY BEY,
                     a/k/a JEFFREY GILBERT
                  a/k/a ABDUR RASHEED BEY,

                              Jeffrey Bey,
                                      Appellant


           On Appeal from the United States District Court
              for the Eastern District of Pennsylvania
                       (D.C. No. 02-cr-00684)
               District Judge: Honorable Marvin Katz




             Submitted Under Third Circuit LAR 34.1(a)
                          April 27, 2006

     Before: AMBRO and FUENTES, Circuit Judges, and
                IRENAS * , District Judge.

                       (Filed: May 15, 2006 )



       *
          Honorable Joseph E. Irenas, Senior District Judge for the
District of New Jersey, sitting by designation.
                                   OPINION OF THE COURT




FUENTES, Circuit Judge.

       Jeffrey Bey appeals his ten-year prison sentence on the ground that the District Court

violated his constitutional rights by imposing it based on a prior conviction not charged in

his indictment or proven to a jury beyond a reasonable doubt. For the reasons stated herein,

we deny Bey’s requested relief and accordingly affirm the District Court.

I.     Background

       Bey pled guilty to a number of charges including: distribution, and possession with

intent to distribute heroin; distribution, and possession with intent to distribute cocaine; and

possession of a firearm by a convicted felon. Bey received a mandatory ten-year sentence

for the drug charges under 21 U.S.C. § 841(b)(1)(B). As to the gun charge, Bey received a

consecutive mandatory sentence of five years under 18 U.S.C. § 922(g)(1). His total prison

sentence was therefore fifteen years.

       Bey does not challenge the five-year sentence. He does argue, however, that his

mandatory ten-year drug sentence is unconstitutional because the fact of his prior felony drug

conviction was neither admitted nor charged in his indictment and proven to a jury beyond

a reasonable doubt. See United States v. Booker, 543 U.S. 220 (2005). He supports this

claim by asserting that because this prior conviction was the sine qua non that rendered the



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ten-year sentence mandatory, see 21 U.S.C. § 841(b)(1)(B), it cannot constitutionally be

found by a judge. See id. Bey accordingly has requested that we remand to the District

Court for re-sentencing. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a).

II.    Analysis

       Because of the quantity of drugs involved–10.62 grams of heroin and 17.27 grams of

crack–Bey was subject to punishment under 21 U.S.C. § 841(b)(1)(B). Pursuant to that

Section, a defendant who has been convicted of a prior felony drug offense and who

distributes, or possesses with the intent to distribute, this sum of drugs “shall be sentenced

to a term of imprisonment which may not be less than ten years and not more than life

imprisonment.” The District Court determined that Bey had such a conviction in the form

of a 1990 New Jersey state court drug possession charge to which he pled guilty. Based on

this finding, the District Court was statutorily required to sentence Bey to at least ten years

in prison for the drug charge.

       Bey nonetheless maintains that the District Court’s finding that he had a prior felony

drug conviction was unconstitutional under Booker. Under recent precedent of this Court,

it is clear that Bey’s contention is incorrect. In United States v. Coleman, __ F.3d ___ (3d

Cir. 2006), we addressed this very issue. There, we held that in a scenario where prior

convictions increased the statutory minimum punishment for a crime, the Government need

not charge the convictions in the indictment and prove them to a jury beyond a reasonable



                                              3
doubt.    See id.   In other words, we held that a district court may make the factual

determination that a defendant has a prior conviction without running afoul of the

Constitution under Booker. That is precisely this issue here, and in light of Coleman, it is

clear that we cannot grant Bey his requested relief.

         We note in passing that this result squares neatly with the language of Booker, the

holding of which stated that “[a]ny fact (other than a prior conviction) which is necessary to

support a sentence exceeding the maximum authorized by the facts established by a plea of

guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a

reasonable doubt.” 543 U.S. at 244. The fact of a prior conviction is thus specifically

exempted from the Booker requirement that certain facts be either admitted or proven to a

jury. This language further convinces us that Bey cannot succeed in his claim.

III.     Conclusion

         For the foregoing reasons, we affirm the judgment of the District Court.




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