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


9-9-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3025




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"USA v. Ewell" (2008). 2008 Decisions. Paper 555.
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NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                              Case No: 07-3025

                      UNITED STATES OF AMERICA

                                       v.

                            CARLTON EWELL,

                                       Appellant

                              Case No: 07-3095

                      UNITED STATES OF AMERICA

                                       v.

                           JACOB S. ADAMS, JR.,

                                       Appellant


               On Appeal from the United States District Court
                          for the District of New Jersey
               District Court Nos. 00-CR-697-1; 00-CR-697-2
              District Judge: The Honorable Garrett E. Brown, Jr.


              Submitted pursuant to Third Circuit L.A.R. 34.1(a)
                             September 9, 2008

      Before: SCIRICA, Chief Judge, MCKEE, and SMITH, Circuit Judges

                           Filed: September 9, 2008


                                  OPINION
SMITH, Circuit Judge.

       Appellants Carlton Ewell (“Ewell”) and Jacob Adams (“Adams”), along with an

accomplice, robbed four banks between October of 1995 and October of 1996. On

November 27, 2002, a jury found Ewell guilty of four counts of bank robbery, in violation

of 18 U.S.C. § 2113, and four counts of use of a firearm during the commission of a

crime of violence, in violation of 18 U.S.C. § 924(c). The jury found Adams guilty of

three counts of the same two crimes. On April 7, 2003, the District Court sentenced

Ewell to 910 months of incarceration and sentenced Adams to 610 months of

incarceration. On July 10, 2006, this Court affirmed both convictions and remanded their

cases to the District Court for resentencing pursuant to United States v. Booker, 543 U.S.

220 (2005). On June 29, 2007, the District Court conducted a sentencing hearing and

sentenced Ewell and Adams to the same terms of incarceration he had previously

imposed. These timely appeals followed.1

       On appeal, both Ewell and Adams argue that the District Court’s imposition of the

applicable statutory mandatory minimum sentence was unconstitutional because the much

shorter sentence contemplated by the Sentencing Guidelines, absent the statutory

minimum, was sufficient to meet the sentencing goals of 18 U.S.C. 3553(a).2 Both


       1
       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court
possesses jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. See United States v.
Cooper, 437 F.3d 324, 327-28 (3d Cir. 2006).
       2
       We exercise plenary review over the District Court’s interpretation of the law.
Gibbs v. Cross, 160 F.3d 962, 964 (3d Cir. 1998).

                                             2
Appellants concede that this Court has upheld the constitutionality of mandatory

minimum sentences in United States v. MacEwan, 445 F.3d 237 (3d Cir. 2006), and

United States v. Walker, 473 F.3d 71 (3d Cir. 2006). Nonetheless, they contend that this

Court should reverse course because the underlying evidence the government submitted at

trial to prove they used a gun during their bank robberies is suspect. Such an argument is

immaterial to the purposes of sentencing and should have been raised as a sufficiency

challenge to the Appellants’ convictions. As such, our decisions in MacEwan and Walker

foreclose this argument.

       Ewell also argues that the District Court committed plain error by failing to

consider evidence of his post-conviction rehabilitation. Pursuant to our decision in

United States v. Lloyd, 469 F.3d 319 (3d Cir. 2006), district courts possess the authority

to reject consideration of post-sentencing rehabilitation. Indeed, Ewell’s attorney

admitted as much at resentencing, noting that it was “permissible” for the District Court

to choose to ignore Ewell’s post-conviction rehabilitation. Given such an admission, the

doctrine of invited error may very well foreclose Ewell from raising this claim on appeal.

Regardless, Ewell’s argument fails because the District Court’s refusal to consider his

post-conviction rehabilitation efforts was not error, plain or otherwise, given our decision

in Lloyd.

       Finally, Adams argues that the District Court committed plain error by sentencing

him “to two 20 year consecutive sentences for [§] 924(c) violations, without having the



                                             3
jury determine that the convictions in counts 4 and 8 constituted second or subsequent

convictions.” As the government notes, Adams’ claim “is really that the fact of his first

conviction under section 924(c)-i.e., a prior conviction-was used to enhance his sentence

for his subsequent convictions under section 924(c).” In Apprendi v. New Jersey, 530

U.S. 466 (2000), the Supreme Court held that the fact of a prior conviction need not be

submitted to a jury and established beyond a reasonable doubt. Id. at 490. Similarly, in

Deal v. United States, 508 U.S. 129 (1993), the Court held that where a defendant is

convicted of multiple section 924(c) violations at a single trial, the court should properly

treat the first conviction as a prior conviction—and any other convictions as subsequent

convictions—for purposes of sentencing. Id. at 137. In light of such authority, Adams’

argument fails.

       In sum, the District Court did not err in sentencing Appellants Ewell and Adams.

Accordingly, we will affirm both judgments of the District Court.




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