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


8-4-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2192




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Recommended Citation
"USA v. Hart" (2006). 2006 Decisions. Paper 614.
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                                                                    NOT PRECEDENTIAL

                       UNTIED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No: 05-2192




                          UNITED STATES OF AMERICA

                                           v.

                                   JAVIER HART,
                                          Appellant


                     Appeal from the Untied States District Court
                       for the Eastern District of Pennsylvania
                            District Court No: 03-cr-00827

                         District Judge: Mary A. McLaughlin


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   July 14, 2006

             Before: SLOVITER, McKEE and RENDELL, Circuit Judges




                                       OPINION




McKEE, Circuit Judge

      Javier Hart appeals from the judgment of conviction that was entered after a jury



                                           1
convicted him of several charges related to his distribution of “crack” cocaine. For the

reasons that follow, we will affirm.

                                               I. .

         Since we are writing primarily for the parties who are familiar with this dispute,

we need only set forth the procedural or factual background of this appeal. We review the

district court’s findings of fact during the suppression hearing for clear error. Our review

of the court’s application of legal principles is plenary. United States v. Perez, 280 F.3d

318, 386 (3d Cir. 2002); United States v. Nolan- Cooper, 155 F.3d 221, 229 (3d Cir.

1998).

         Hart first claims that the district court erred in denying his motion to suppress

evidence obtained from 7012 Emerson Avenue, in Upper Darby. We reject that claim

substantially for the reasons set forth by the district court in its well reasoned and detailed

Memorandum and Order, dated October 18, 2004. The district court agreed that there

was no probable cause to search that residence, but allowed the physical evidence that

was seized to be introduced at trial pursuant to the “good faith exception” first announced

in United States v. Leon, 468 U.S.897 (1884). Accordingly, our inquiry is limited to

determining whether it was objectively reasonable for the police officers executing that

search to rely upon the authority of the search warrant. United States v. Ninety-two

Thousand Four Hundred Twenty-two, Dollars and Fifty-Seven Cents, 307 F.3d 137 (3d

Cir. 2002). The district court explains why the conduct of those officers was objectively



                                                2
reasonable even though probable cause did not exist to search 7012 Emerson Avenue.

Moreover, although the warrant was not supported by probable cause, it was not “so

lacking in indicia of probable cause as to render official belief in its existence entirely

unreasonable.” Id., at 146. Accordingly, the district court did not err in concluding that

the officers acted in good faith in searching that residence, and the evidence they seized

was properly admitted at trial.

                                              II

       Hart also argues that the district court erred in denying his motion to strike the

amended information the government filed before trial charging several prior drug

offenses pursuant to 21 U.S.C. § 851. That filing subjected him to a mandatory minimum

sentence of life imprisonment under 21 U.S.C. § 841 (b)(1)(A). Hart claims that the

government filed the amended information to punish him for asserting his constitutional

right to go to trial and refusing to plead guilty. However, the government argues without

contradiction that it initially filed an information containing only one prior felony drug

offense because that was part of the plea agreement Hart initially agreed to accept. See

Appellee’s Br. at 35. Pursuant to those plea negotiations, the government had agreed to

rely upon only one of Hart’s prior felony drug offenses thereby reducing his exposure to a

mandatory minimum sentence of 25 years imprisonment rather than the mandatory

minimum of life imprisonment that would otherwise have applied. See 21 U.S.C. §§

841(b)(1)(A) and 924(c).



                                               3
       In an analogous context, the Supreme Court has explained: “[s]o long as the

prosecutor has probable cause to believe that the accused committed an offense defined

by statute, the decision whether or not to prosecute, and what charges to file or bring

before a jury, generally rests in his[/her] discretion.” Bordenkircher v. Hayes, 434 U.S.

357, 364 (1978). Accordingly, we reject Hart’s attempt to argue that the timing of the

filing of the amended notice somehow suggests the prosecutor’s bad faith. It suggests

only that Hart lost one of the advantages a negotiated plea would have given him. “While

confronting a defendant with the risk of more severe punishment clearly may have a

discouraging effect on the defendant's assertion of his trial rights, . . . the imposition of

these difficult choices [is] an inevitable--and permissible--attribute of any legitimate

system which tolerates and encourages the negotiation of pleas.” United States v. Hodge,

412 F.3d 470 (3d. Cir. 2005) (internal quotation marks omitted, brackets in original).

                                             III.

       Hart also claims 21 U.S.C. § 841 is facially unconstitutional. However, as Hart

himself recognizes, that claim is foreclosed by our holding in United States v. Kelly, 272

F.3d 622 (3d Cir. 2001). Similarly, Hart’s argument that the prior offenses used to

enhance his sentence must be established by a jury based upon proof beyond a reasonable

doubt following the decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and

United States v. Booker, 543 U.S. 220 (2005) is also foreclosed by our jurisprudence. See




                                               4
United States v. Ordaz, 398 F.3d 236 (3d. Cir. 2005).*

                                           IV.

      For all the above reasons, we will affirm the judgment of sentence.




      *
        We recognize that Hart’s arguments are partly intended merely to preserve his
Booker argument in the event that the Supreme Court overrules its decision in
Almendarez-Torres v. United States, 523 U.S. 224 (1998).

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