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


7-27-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3816




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Recommended Citation
"USA v. Spann" (2007). 2007 Decisions. Paper 692.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/692


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                                                              NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 05-3816
                                  ___________



                       UNITED STATES OF AMERICA,

                                                  Appellee,

                                        v.

                                JOHN SPANN,

                                             Appellant.
                          ________________________

                  On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                         (D.C. Criminal No. 04-CR-00758)
             District Court Judge: The Honorable Lawrence F. Stengel
                                    ___________

                  Submitted Under Third Circuit L.A.R. 34.1(a)
                                April 24, 2007

    BEFORE: SCIRICA, Chief Judge, FUENTES and ALARCÓN,* Circuit Judges.

                              (Filed: July 27, 2007)



                                 ____________

*
 The Honorable Arthur L. Alarcón, Senior Judge of the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
                                 OPINION OF THE COURT
                                      ____________

FUENTES, Circuit Judge.

          John Spann was convicted by a jury of possession of a firearm by a felon in

violation of 18 U.S.C. § 922(g)(1). After determining that Spann had been convicted of

three previous felonies, the District Court enhanced his sentence pursuant to the Armed

Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). The Court then calculated a

Sentencing Guidelines range of 188 to 235 months, and sentenced Spann to 188 months

in prison. On appeal, Spann argues that the government’s failure to charge his three

previous convictions in the indictment and to prove them to the jury beyond a reasonable

doubt violated his Fifth and Sixth Amendment rights. For the reasons that follow, we will

affirm.

                                               I.

          On October 25, 2003, while driving in Philadelphia, Spann collided with a public

city bus. A police officer who arrived at the scene found Spann staggering around his

vehicle, smelled alcohol on his breath, and observed that his eyes looked bloodshot. The

officer requested Spann’s license and registration, and, as Spann reached into the car,

observed him knock a black object from the rear seat onto the floor. After ordering

Spann to step aside, the officer retreived a loaded shotgun from the vehicle.



          Spann was indicted on December 2, 2004, and charged with one count of

                                               2
possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). During

a three-day trial, the government offered proof by stipulation that Spann had been

convicted of one previous, unspecified felony. The jury found Spann guilty.

       At sentencing on August 2, 2005, the District Court determined that Spann had in

fact been convicted of three previous felonies, two aggravated assaults and one burglary.

The Court therefore concluded that he was subject to an increased sentence pursuant to

the ACCA, which provides that a person convicted under § 922(g) after three previous

convictions “for a violent felony or a serious drug offense . . . shall be fined under this

title and imprisoned not less than fifteen years.” 18 U.S.C. § 924(e). The Court

sentenced Spann to 188 months, and this appeal followed.

       We exercise jurisdiction over an appeal of a final decision of a district court

pursuant to 28 U.S.C. § 1291, and over a final sentence pursuant to 18 U.S.C. § 3742.

Because Spann raises issues of statutory and constitutional interpretation on appeal, our

review is plenary. United States v. Lennon, 372 F.3d 535, 538 (3d Cir. 2004).

                                              II.

       Spann argues that, because his three previous felony convictions made him eligible

for an enhanced prison sentence under the ACCA, the government should have charged

all three convictions as elements of the offense in the indictment1 and proven them to the

jury beyond a reasonable doubt. He claims that the government’s failure to do so violated

   1
    The government did attach to Spann’s indictment a Notice of Prior Convictions,
   which stated that Spann had three previous felony convictions, two for aggravated
   assault and one for burglary.

                                               3
his Fifth and Sixth Amendment rights.

       The Supreme Court, however, held in Almendarez-Torres v. United States, 523

U.S. 224 (1998), that recidivism is not an element of the offense and therefore may be

determined by a district court for the purpose of enhancing a statutorily prescribed prison

sentence. Id. at 239, 243-44. Spann correctly notes that the holding of Almendarez-

Torres has been questioned by subsequent Supreme Court opinions such as Apprendi v.

New Jersey, 530 U.S. 466, 489 (2000) (“[I]t is arguable that Almendarez-Torres was

incorrectly decided.”), and Justice Thomas’s concurrence in Shepard v. United States,

544 U.S. 13, 27 (2005) (“Almendarez-Torres . . . has been eroded by this Court’s

subsequent Sixth Amendment jurisprudence, and a majority of the Court now recognizes

that Almendarez-Torres was wrongly decided.”). However, the Court in Apprendi

declined to overrule Almendarez-Torres and explicitly exempted prior convictions from

its holding. 530 U.S. at 490 (“Other 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.”) (emphasis added). In

addition, subsequent to Shepard, we have held that Almendarez-Torres remains binding

law and that we must therefore continue to apply it. See United States v. Vargas, 477

F.3d 94, 105 (3d Cir. 2007) (“[T]he Supreme Court has yet to overrule [Almendarez-

Torres]. As a consequence, it continues to bind our decisions.”); United States v.

Coleman, 451 F.3d 154, 161 (3d Cir. 2006) (“Shepard did not affect the continuing

validity of Almendarez-Torres.”).

                                             4
      Spann in fact concedes that Almendarez-Torres precludes his Fifth Amendment

claim, but asserts that Almendarez-Torres does not affect his Sixth Amendment claim.

We rejected precisely this argument in Vargas. 477 F.3d at 105.

                                           III.

      Because Spann’s claims are foreclosed by Almendarez-Torres and our subsequent

case law, we will affirm the sentence imposed by the District Court.




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