                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-23-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2595




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Recommended Citation
"USA v. Wright" (2008). 2008 Decisions. Paper 813.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/813


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                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                        No. 07-2595


                            UNITED STATES OF AMERICA

                                              v.

                                   EVERTON WRIGHT,
                                               Appellant


              APPEAL FROM THE UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF NEW JERSEY
                             (D.C. Crim. No. 07-cr-00054)
                   District Judge: The Honorable Joseph E. Irenas


                        Submitted Under Third Circuit LAR 34.1(a)
                                     June 25, 2008


                 Before: SLOVITER, BARRY and ROTH, Circuit Judges

                               (Opinion Filed: July 23, 2008)


                                         OPINION




BARRY, Circuit Judge

       Everton Wright appeals from a sentence of 72 months of imprisonment imposed

following his plea of guilty to one count of illegally reentering the United States after
having been deported, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Wright’s only

contention on appeal is that § 1326(b)(2) is unconstitutional on its face. We have

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1), and will affirm.

       8 U.S.C. § 1326(a) states that any alien deported from the United States who later

reenters while his term of deportation is outstanding shall be fined or imprisoned for no

longer than two years, or both. Section 1326(b)(2) states that those aliens convicted

under sub-section (a) who were deported subsequent to the commission of an aggravated

felony shall be fined or imprisoned for no longer than twenty years, or both. In

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), the Supreme Court held

that the fact of a prior conviction for an aggravated felony under § 1326(b)(2) is a

sentencing factor and not an element of the underlying offense. Accordingly, it need only

be proven to a sentencing judge by a preponderance of the evidence.

       The District Court determined by a preponderance of the evidence that Wright had

been deported after having been convicted of an aggravated felony—namely, the

attempted sale of a controlled substance. Wright concedes that Almendarez-Torres

governs this case and, thus, that his challenge to the constitutionality of the illegal reentry

statute is a challenge “this Court must reject.” (Appellant’s Br. at 3). He observes,

however, that “[a]fter the decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), it

now appears that a majority of the Members of the Supreme Court are of the view that the

constitutional question in Almendarez-Torres . . . was incorrectly decided,” (id. at 7), and



                                               2
that this appeal is solely to preserve his constitutional claim in the event Almendarez-

Torres were to be reversed.

       Thus, all Wright expects and all he asks is that we summarily reject his claim on

the merits in order to preserve it for further review. The government responds that “[a]t

first blush, it might seem expedient to dispose of this appeal on that basis.” (Appellee’s

Br. at 1). Whatever the number of the blush, it is wholly expedient and eminently

appropriate to dispose of the appeal on the limited basis on which it is presented. We thus

decline the government’s invitation in this and in a companion case to

       issue a precedential opinion holding that defendants who unconditionally
       plead guilty (1) waive a claim that the District Court should have given
       them a jury trial on the fact of prior conviction, (2) waive a Sixth
       Amendment challenge to § 1326(b), and (3) lack standing to argue that §
       1326(b) violates the jury-trial rights of other defendants who proceed to
       trial. Further, this Court should confirm that guilty-pleading defendants
       who nevertheless advance such arguments, or who force the Government to
       prove their prior convictions at sentencing, cannot complain about the
       Government’s refusal to move for a third-level reduction for acceptance of
       responsibility under U.S.S.G. § 3E1.1(b).

Letter of June 13, 2008 at 2.1

       The judgment of sentence will be affirmed.




   1
      The letter purports to be pursuant to Fed. R. App. P. 28(j) but is not because, for
starters, no “pertinent and significant” supplemental authorities are even mentioned.

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