                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-4-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1761




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Recommended Citation
"USA v. Levine" (2007). 2007 Decisions. Paper 1361.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1361


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                                              NOT PRECEDENTIAL

 IN THE UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
              _______________

                   No. 04-1761
                 _______________

         UNITED STATES OF AMERICA

                           v.

              JOE NATHAN LEVINE,

                        Appellant
                ________________

   On Appeal from the United States District Court
             for the District of New Jersey
                (D.C. No. 01-cr-00480)
   District Judge: Honorable Dennis M. Cavanaugh
                  ________________

     Submitted Under Third Circuit LAR 34.1(a)
                 March 27, 2007

Before: FISHER, JORDAN and ROTH, Circuit Judges.

                (Filed April 4, 2007)
                 _______________

            OPINION OF THE COURT
                _______________
JORDAN, Circuit Judge.

       Joe Nathan Levine appeals the order of the United States District Court for the

District of New Jersey sentencing him to imprisonment1 and requiring that he pay

restitution. Specifically, Levine argues that the restitution order, which relied on facts not

established by a jury at trial or admitted by him, violated the rule established in the

Supreme Court cases of Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakley v.

Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005). The

government, however, has moved for summary affirmance of the District Court’s order,

relying on our recent en banc decision in United States v. Leahy, 438 F.3d 328 (3d Cir.

2006). For the following reasons, we will grant the government’s motion.

                                              I.

       On October 17, 2003, Levine agreed to plead guilty to one count of conspiring “to

utter and possess forged securities of organizations, namely personal checks of multiple

institutions, contrary to 18 U.S.C. § 513(a), in violation of 18 U.S.C. § 371.”




  1
    Levine’s Opening Brief challenged his sentence of imprisonment on two grounds:
that the District Court improperly used a sentence enhancement that first appeared in a
United States Sentencing Guidelines Manual published after the end of the conspiracy to
which he pleaded guilty, and that the District Court improperly increased his sentence
because of the amount of loss to the victims even though that loss figure was based on
facts that were not admitted by him or proved to a jury. However, on June 8, 2006,
Levine filed a motion to withdraw both of these arguments, because his sentence of
imprisonment had expired, and to rely solely on his Supplemental Brief. We construe this
motion as a motion to strike. Levine’s motion will be granted, and we will only address
the argument he has raised in his Supplemental Brief.

                                              2
During Levine’s plea hearing, the prosecutor questioned Levine only on the facts of the

offense, and asked no questions regarding the amount of loss sustained as a result of the

offense. In a subsequent sentencing hearing, the District Court sentenced Levine to a

term of thirty-five months in prison, and ordered him to pay restitution in the amount of

$133,713.50.

                                              II.

       In United States v. Booker, the Supreme Court reaffirmed its holding in Apprendi

v. New Jersey, stating 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.” Booker, 543 U.S. at 244. Levine asserts that the rule announced in

Apprendi and Booker must apply to restitution orders, and that the District Court’s

restitution order was thus improper because the government did not establish the

appropriate amount of restitution through his admission or by proof to a jury beyond a

reasonable doubt.

       We recently addressed this issue in our en banc decision in United States v. Leahy,

wherein we stated that “because, in our view, restitution ... is not the type of criminal

punishment that evokes Sixth Amendment protection under Booker, we conclude that the

amount a defendant must restore to his or her victim need not be admitted by the

defendant or proved to a jury beyond a reasonable doubt.” Leahy, 438 F.3d at 331.



                                              3
Levine admits that his arguments are directly contrary to our decision in Leahy, and that

he is asking this Court to reconsider its decision in that case. Because we are bound by

the en banc decision in Leahy, which directly controls this case, we will grant the

government’s motion for summary affirmance.

                                            III.

       For the foregoing reasons, Levine’s Motion to Strike his Opening Brief and Rely

solely on his Supplemental Brief will be granted, and the government’s Motion for

Summary Affirmance will be granted.




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