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


6-21-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3307




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"USA v. Presley" (2006). 2006 Decisions. Paper 860.
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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 05-3307
                                    ____________

                          UNITED STATES OF AMERICA


                                           v.

                                RAHEIAN PRESLEY,

                                                    Appellant
                                    ____________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                              (D.C. No. 04-CR-000294-1)
                       District Judge: Honorable Anita B. Brody

                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 15, 2006

           Before: FISHER, CHAGARES and REAVLEY,* Circuit Judges.

                                    ____________

                                (Filed: June 21, 2006 )
                                    ____________

                             OPINION OF THE COURT
                                  ____________




      *
        The Honorable Thomas M. Reavley, United States Circuit Judge for the Fifth
Circuit, sitting by designation.
CHAGARES, Circuit Judge.

       Raheian Presley committed nine bank robberies prior to the Supreme Court of the

United States’ decision in United States v. Booker, 543 U.S. 220 (2005). After he was

apprehended, Presley pleaded guilty to nine counts of bank robbery and the district court

sentenced him to 133 months in federal prison. On appeal, Presley contends, inter alia,

that the ex post facto principle implicit in the Due Process Clause of the Fifth Amendment

prevents the application of Booker’s remedial holding to his pre-Booker conduct. For the

reasons that follow, we affirm.

                                              I.

       Between July 2003 and April 2004, Presley committed nine bank robberies in the

City of Philadelphia. After his ninth heist, a teller provided police with a description of

the perpetrator, and Presley was arrested shortly thereafter. Presley was later charged

with nine counts of bank robbery. See 18 U.S.C. § 2113(a).

       Presley pleaded guilty to all nine counts. At sentencing, the district court

calculated the advisory Guidelines by finding facts regarding Presley’s criminal history

that were not admitted in the guilty plea. Specifically, the court found that Presley had

prior convictions for felony drug trafficking and carjacking. On that basis, it treated

Presley as a career offender pursuant to U.S.S.G. § 4B.1.1. This produced a sentencing

range of 151 to 188 months. The court then considered this advisory range and other

factors relevant to sentencing. After accounting for a consecutive “backtime” sentence



                                              2
from the Pennsylvania state authorities, the district court imposed a sentence of 133

months. Presley now appeals.

                                             II.

       Presley argues that because he committed his crimes prior to the Supreme Court’s

decision in Booker, ex post facto principles prevent the application of Justice Breyer’s

remedial opinion here. Our Court recently rejected this precise argument in United States

v. Pennavaria, 445 F.3d 720 (3d Cir. 2006). Our decision recognized that the Supreme

Court in Booker explicitly directed that its holdings be applied to all cases on direct

review. Id. at 723 (citing Booker, 543 U.S. at 268). This case is on direct review and,

accordingly, Booker will be applied.

       Presley’s ex post facto argument also fails under Pennavaria because he had fair

warning that his crimes were punishable by a prison term of up to twenty years under 18

U.S.C. § 2113(a). See id. Further, in Pennavaria we held that a defendant who engaged

in criminal conduct prior to Booker “had fair warning that his sentence could be enhanced

based on judge-found facts as long as the sentence did not exceed the statutory

maximum.” Id. at 723-24. Presley’s 133-month sentence did not exceed the statutory

maximum and, thus, did not offend the ex post facto principle implicit in the Due Process

Clause.




                                              3
                                             III.

      Because Presley’s ex post facto argument fails, we need not address his contention

that Booker (shorn of its remedy) and Shephard v. United States, 544 U.S. 13 (2005),

prevent the application of a career-offender enhancement in this case.

                                             IV.

      Based on the foregoing, we will affirm the district court’s judgment.




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