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


3-30-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1439




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                                                               NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                      No. 06-1439


                           UNITED STATES OF AMERICA


                                           v.

                            RICARDO ALLEN MURRAY,

                                                      Appellant


                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                                 (D.C. No. 05-cr-00455)
                      District Judge: Honorable Juan R. Sanchez


                   Submitted pursuant to Third Circuit L.A.R. 34.1(a)
                                   March 13, 2007

         Before: FUENTES, VAN ANTWERPEN, and SILER,* Circuit Judges.

                                (Filed: March 30, 2007)



                              OPINION OF THE COURT

SILER, Circuit Judge.




   *
     The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge for the Sixth
Circuit, sitting by designation.
       Defendant Ricardo Allen Murray appeals his 51-month sentence for reentry by an

alien, in violation of 8 U.S.C. §§ 1326 (a), (b)(2). He contends that the District Court

effectively reinstated a pre-Booker departure requirement because it did not recognize the

advisory nature of the United States Sentencing Guidelines. He further argues that the

sentence violated his Fifth and Sixth Amendment rights because the District Court

improperly increased his sentence based upon a prior conviction that was neither charged

in the indictment nor admitted to in his guilty plea. We affirm.

                       I. Treatment of the Sentencing Guidelines

       Murray argues that the District Court violated United States v. Booker, 543 U.S.

220 (2005), and United States v. Cooper, 437 F.3d 324 (3d Cir. 2006), by reading the

Guidelines as mandatory instead of giving them the appropriate advisory weight.

Specifically, Murray points to the District Court’s statements that “[t]his is not an unusual

case justifying a sentence below the guidelines” and that it did not “see anything unusual

that merits any sentence outside of the guidelines.” As a result, in Murray’s view, the

District Court failed to appropriately consider his request for a below-Guidelines sentence

based upon the grounds of family circumstances and fast-track disparity.

       The District Court gave appropriate weight to the Guidelines, 18 U.S.C. § 3553

factors, and other relevant sentencing considerations. It expressly stated that it

“recognizes that the United States Sentencing Guidelines are no longer mandatory, but

are advisory pursuant to the Supreme Court’s holding in the United States versus Booker

decision.” Additionally, the District Court properly followed our Cooper opinion,

                                              2
although it imposed Murray’s sentence pre-Cooper. The District Court first calculated

the applicable sentencing Guidelines range based upon the presentence investigation

report and then considered the § 3553 (a) factors. Murray’s particular circumstances were

weighed by the District Court in its sentence.

       Further, while the District Court did consider Murray’s fast-track argument, our

recent decision in United States v. Antonio Vargas, 477 F.3d 94 ( 3d Cir. 2007), renders

this argument without merit. In Vargas, we considered a defendant’s argument that he

faced an unwarranted sentencing disparity in violation of § 3553(a)(6) because he was

subjected to a higher Guidelines range than defendants in fast-track districts. We found

that any disparity created by the fast-track programs is warranted and therefore comports

with § 3553(a)(6). Furthermore, as Vargas notes, our decision in United States v.

Charles, 467 F.3d 828 (3d Cir. 2006), “placed the burden on the defendant to demonstrate

similarity by showing that other defendants’ ‘circumstances exactly paralleled’ his.”

Vargas, 477 F.3d at 100. The District Court in this case noted that Murray did not

demonstrate this. See App. at 127 (“I do not find, however, that defendant is similarly

situated to those in many of those border states.”) We believe the District Court was

correct that, absent this showing, Murray’s fast-track disparity argument fails.

                                II. Prior Convictions

       Murray contends that Apprendi v. New Jersey, 530 U.S. 466 (2000), requires that

prior convictions that enhance the statutory penalty should be charged in the indictment

and either proven to a jury beyond a reasonable doubt or admitted as an element of the

                                             3
offense. Because this did not occur, Murray argues that the government violated his Fifth

and Sixth Amendment rights.

       There is no dispute from Murray that Almendarez-Torres v. United States, 523

U.S. 224 (1998), controls the Fifth Amendment portion of the claim. While Murray does

not concede that Almendarez-Torres controls his Sixth Amendment claim, our precedent

holds that it does. In United States v. Coleman, 451 F.3d 154 (3d Cir. 2006), we held that

the government’s failure to prove prior convictions to a jury beyond a reasonable doubt

did not violate a defendant’s Sixth Amendment rights, and we followed Almendarez-

Torres in reaching that decision. Id. at 159. Thus, Murray’s claims fail.

       AFFIRMED.




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