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


10-31-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2422




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Recommended Citation
"USA v. Concepcion" (2005). 2005 Decisions. Paper 317.
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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 03-2422
                                     ____________

                           UNITED STATES OF AMERICA

                                             v.

                                ALEXIS CONCEPCION,

                                           Appellant
                                     ____________

                    On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                 (D.C. No. 02-cr-00488)
                    District Judge: Honorable Ronald L. Buckwalter
                                      ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  October 27, 2005

           Before: SLOVITER, FISHER and GREENBERG, Circuit Judges.

                               (Filed: October 31, 2005)
                                     ____________

                              OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.

                                            I.

      Appellant Alexis Concepcion challenges the legality of his sentence under United

States v. Booker, 125 S. Ct. 738 (2005). Because our decision in United States v. Davis,
407 F.3d 162 (3d Cir. 2005), controls this case, we will vacate Appellant’s sentence and

remand to the District Court for resentencing.

                                             II.

       As we write only for the parties, who are familiar with the underlying facts, we

shall set out only those facts necessary to our analysis. On January 6, 2003, Appellant

pled guilty to a four-count indictment charging the following crimes: possession with

intent to distribute cocaine base, possession of a firearm in furtherance of a drug

trafficking crime, possession of a firearm by a convicted felon, and possession of

ammunition by a convicted felon.

       On January 4, 2005, Appellant’s attorney moved to withdraw from the case, and on

January 18, 2005, the attorney filed an Anders brief, see Anders v. California, 386 U.S.

738 (1967), stating that upon review of the case he could identify no non-frivolous

grounds for appeal.1 On March 11, 2005, Appellant was given thirty days to file an


       1
         We deem it worthy of note that Booker was argued on October 4, 2004, and the
decision was issued on January 12, 2005, a full week before counsel submitted his Anders
brief in this case. The decision was reported widely in the news media. Although it is
possible that the brief had been completed before January 12, we are still somewhat
troubled by counsel’s conclusion that a challenge to the legality of the sentence would be
frivolous because “[t]he district court lacked the authority to impose a lower sentence”
than the mandated Guidelines range. (App. Br. at 13.) To be sure, as of January 18, we
had not yet decided Davis, and thus had not yet applied Booker to pending appeals in this
Circuit. Nonetheless, on January 18, Booker was the law, and Blakely v. Washington, 542
U.S. 296 (2004), had been the law for almost six months, during which time several
Courts of Appeals had held its ruling to apply in at least some respects to the Federal
Sentencing Guidelines. See, e.g., United States v. Ameline, 376 F.3d 967 (9th Cir. 2004);
United States v. Booker, 375 F.3d 508 (7th Cir. 2004). We have held that in filing an

                                              2
informal pro se brief, and on March 24, 2005, Appellant filed an informal brief

challenging the legality of his sentence under Booker.

                                             III.

       In Davis, this Court decided to remand for resentencing all cases pending on direct

review when Booker was decided in which the defendant was sentenced under the

mandatory Guidelines regime. Davis, 407 F.3d 162 at 165. We explained that

       [b]ecause the sentencing calculus was governed by a Guidelines framework
       erroneously believed to be mandatory, the outcome of each sentencing
       hearing conducted under this framework was necessarily affected. Although
       plain error jurisprudence generally places the burden on an appellant to
       demonstrate specific prejudice flowing from the District Court’s error, in
       this context – where mandatory sentencing was governed by an erroneous
       scheme – prejudice can be presumed.

Id.

       Appellant was sentenced under the mandatory Guidelines regime, and he did not

waive his right to appeal the legality of his sentence. Cf. United States v. Lockett, 406

F.3d 207, 212-14 (3d Cir. 2005) (holding that a defendant who executed an appellate

waiver as part of his plea agreement is not entitled to resentencing in light of Booker).

The District Court advised Appellant of his appellate rights as follows:




Anders brief, counsel attests that he has “thoroughly scoured the record in search of
appealable issues.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000). We think
it not outside the range of reasonably competent representation for counsel to have
recognized that Booker might well create non-frivolous issues for appeal in this case. We
do not expect clairvoyance about future changes in the law, merely timely recognition of
those changes that have occurred before a brief is filed.

                                              3
      I also remind you that when you enter a plea of guilty like you have done
      here today, the only direct appeal rights you have are from the validity of
      this proceeding that is going on right now, this entering of the plea, and the
      legality of the sentence that I impose.

Plea Hearing Tr. at 17, Jan. 6, 2003. Because Appellant’s appeal is not barred under

Lockett, we are bound under Davis to remand for resentencing. Accordingly, we will

vacate Appellant’s sentence and remand for resentencing in light of Booker.




                                             4
