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


3-22-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3294




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                                                             NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT


                                  No. 04-3294


                        UNITED STATES OF AMERICA

                                        v.

                               VERNON REECE,
                                    Appellant


                  Appeal from the United States District Court
                           for the District of New Jersey
                         (D.C. Criminal No. 04-cr-00226)
                 District Judge: Honorable Garrett E. Brown, Jr.)


                   Submitted Under Third Circuit LAR 34.1(a)
                                March 6, 2006

                Before: RENDELL and AMBRO, Circuit Judges,
                        and SHAPIRO, District Judge*

                             (Filed: March 22, 2006)


                           OPINION OF THE COURT




*   Honorable Norma L Shapiro, Senior Judge of the United States District Court for
    the Eastern District of Pennsylvania, sitting by designation.
RENDELL, Circuit Judge.

       In a plea agreement dated January 20, 2004, Vernon Reece pled guilty to

conspiracy to distribute and possess with intent to distribute more than 100 kilograms of

marijuana. In his plea agreement, Reece stipulated to a base offense level of 26. See

U.S. Sentencing Guidelines Manual § 2D1.1(c)(7). Furthermore, Reece stipulated that he

“was an organizer, leader, manager, or supervisor of the relevant criminal activity,”

which, pursuant to § 3B1.1(c) of the Sentencing Guidelines, resulted in a two-level

increase in Reece’s base offense level. The government agreed it would not seek an

upward adjustment for possession of a firearm, see U.S.S.G. Manual § 2D1.1(b)(1), and

agreed additionally that Reece’s acceptance of responsibility merited a two-level

downward departure, see U.S.S.G. § 3B1.1(a). The government also agreed that Reece

was entitled to a one-level downward departure pursuant to § 3E1.1(b) of the Sentencing

Guidelines. Reece’s plea agreement did not include a waiver of his right to appeal his

sentence.

       After Reece pled guilty but before sentencing, the Supreme Court decided Blakely

v. Washington, 542 U.S. 296 (2004). The District Court acknowledged Blakely, stating

that “using the guidelines to guide [its] discretion,” rather than as mandatory, “the

sentence would not be different from the one that [it] would impose under the

[G]uidelines.” The District Court sentenced Reece to 65 months imprisonment, applying

the two-level enhancement and three-level downward departure to a base offense level of

26. After Reece’s sentencing, the Supreme Court decided United States v. Booker, 128

                                              2
S. Ct. 738 (2005), declaring the Sentencing Guidelines advisory.

       On appeal, Reece argues that the two-level upward adjustment to which he

stipulated – and that the District Court applied in sentencing – for acting as an

“organizer, leader, manager, or supervisor of the relevant criminal activity” violated his

Sixth Amendment rights under Blakely and Booker. Reece asserts that the District Court

must determine whether he would have pled guilty in light of Blakely and whether the

two-level enhancement for his role in the offense must be determined by a jury. In

Blakely, the Supreme Court stated that “[w]hen a defendant pleads guilty, the State is free

to seek judicial sentence enhancements so long as the defendant either stipulates to the

relevant facts or consents to judicial factfinding.” 542 U.S. at 310. Moreover, in United

States v. Cianci, 154 F.3d 106, 110 (3d Cir. 1998), we stated that the defendant could not

“renege on his agreement” by challenging on appeal an enhancement that the defendant

stipulated to in the plea agreement. See also United States v. Melendez, 55 F.3d 130 (3d

Cir. 1995) (barring defendant from disputing stipulation regarding sentencing range).

Furthermore, in United States v. Lockett, 406 F.3d 207 (3d Cir. 2005), we refused to

invalidate a defendant’s sentence on the grounds that he did not know at the time of his

guilty plea that the Supreme Court would later declare the Sentencing Guidelines

advisory. Rather, we noted that “[t]he possibility of a favorable change in law occurring

after a plea agreement is merely one of the risks that accompanies a guilty plea.” Id. at

214. Because Reece stipulated to the facts underlying the two-level enhancement of his

sentence in the plea agreement, remanding his sentence to the District Court for

                                             3
reconsideration pursuant to Blakely is unnecessary.

          Additionally, Reece contends that this court should evaluate the reasonableness of

his sentence in light of Booker , even if the two-level enhancement applies. The

government asserts that our holding in Lockett renders the plea agreement stipulations

binding, and that our decision in United States v. Hill, 411 F.3d 425 (3d Cir. 2005),

makes remanding the case to the District Court for reconsideration of Reece’s sentence in

light of Booker unnecessary. In United States v. Davis, 407 F.3d 162 (3d Cir. 2005), we

held that defendants sentenced under the previously mandatory Sentencing Guidelines

should have their sentences remanded to the District Court for resentencing in light of

Booker. However, in Hill, we clarified that where a district court clearly indicates that an

alternative sentence would be identical to the sentence imposed under the Sentencing

Guidelines, any error that may attach to a defendant’s sentence under Booker is harmless.

Therefore, because the District Court indicated that it would impose the same sentence on

Reece were the Guidelines discretionary rather than mandatory, remanding Reece’s

sentence for reconsideration pursuant to Booker is also unnecessary. We will, therefore,

affirm.

______________________




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