                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-8-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1702




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     No: 03-1702

                          UNITED STATES OF AMERICA,

                                                  Appellee

                                             v.

                                  FELTON McCRAE,

                                             Appellant

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                            (Criminal Case No. 01-307-2)
                          District Judge: Hon. Curtis Joyner

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    March 8, 2004

               Before: NYGAARD, McKEE, RENDELL, Circuit Judges

                             (Opinion filed: June 8, 2005)


                                       OPINION

McKEE, Circuit Judge.

      Felton McCrae argues that the district court erred in applying career offender and

supervisory role enhancements to the sentence imposed following acceptance of

McCrae’s guilty plea. McCrae also contends that application of the supervisory role

enhancement constituted a breach of his plea agreement. We reject McCrae’s claims on
their merits. However, for the reasons that follow, we will remand for resentencing

pursuant to the Supreme Court’s recent pronouncements in United States v. Booker, 543

U.S. ___ , 125 S. Ct. 738 (2005).

                                              I.

       Because we write primarily for the parties, it is not necessary to recite the facts or

procedural history of this case except insofar as may be helpful to our brief discussion.

       McCrae pled guilty to conspiracy to import more than 500 grams of cocaine and

importation of cocaine. McCrae’s plea agreement included the following stipulations: (1)

the substance possessed was cocaine; and, therefore, Section 2B1.1 of the Sentencing

Guidelines applied to sentencing calculations, and (2) approximately 1,312 grams of

cocaine were imported; and therefore, Section 1B1.3 of the Sentencing Guidelines

applied. McCrae and the government also agreed that each was “free to argue the

applicability of any other provision of the sentencing guidelines, including offense

conduct, offense characteristics, criminal history, adjustments and departures.” The

government reserved the right to “[m]ake whatever sentencing recommendation as to

imprisonment, fines, forfeiture, restitution and other matters which the government deems

appropriate, . . . comment on the evidence and circumstances of the case, . . . [and]

address the Court regarding the nature and seriousness of the offense.” The “stipulations

[were] not binding upon either the Probation Office or the Court,” and the district court

could therefore “make [independent] factual and legal determinations that differ from”



                                              2
the stipulations and that may have resulted “in an increase or decrease in the Sentencing

Guidelines range and the sentence . . . imposed.”

       McCrae’s base offense level was 26, and the court added three levels for his role

as a manager. McCrae was also a “career offender.” The total offense level calculated in

the PSR was therefore 37. McCrae’s 17 prior criminal history points placed him in

category VI of the guideline grid. That category is also the appropriate category for

career offenders.

       McCrae objected to the three-point enhancement for his supervisory role. His

counsel acknowledged, however, that even if the three-point enhancement were not to be

applied, McCrae’s offense level would not change because of his Criminal History

Category. The district court concluded that McCrae’s total offense level was 34 1 and his

Criminal History Category was VI. Accordingly, the court imposed a sentence of 276

months in prison.

                                            II.

       After the court accepted McCrae’s guilty plea and imposed sentence, the Supreme

Court decided United States v. Booker. Briefly stated, “[t]he Court held that 18 U.S.C. §

3553(b)(1), the provision of the Sentencing Reform Act that makes the Guidelines

mandatory, was [unconstitutional] and that it must be severed and excised [from the




   1
    The court found that McCrae was entitled to a three-level credit for acceptance of
responsibility.

                                             3
Guidelines].” United States v. Ordaz, 398 F.3d 236, 239 (3d. Cir. 2005). The Court also

reaffirmed the holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), which stated,

“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond

a reasonable doubt."

       Following that decision, McCrae asked to be resentenced pursuant to Booker.

Since the district court thought the Guidelines were mandatory when it decided upon an

appropriate sentencing range, we will vacate McCrae’s sentence and remand for

resentencing in accordance with Booker and the procedure we recently outlined in United

States v. Davis, 407 F.3d 162 (3d. Cir. 2005).

                                             III.

       For the foregoing reasons, we will vacate McCrae’s sentence and remand this

matter to the District Court for resentencing pursuant to the Supreme Court’s recent

pronouncements in United States v. Booker, 543 U.S. ___ , 125 S. Ct. 738 (2005). See

also United States v. Davis, supra.




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