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


4-25-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1877




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                                                                NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-1877


                                   UNITED STATES

                                           v.

                                 DAVID LEE FISHER,

                                       Appellant


                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                (D.C. No. 01-cr-00769-1)
                       District Judge: Honorable Robert F. Kelly


                       Submitted Under Third Circuit LAR 34.1(a)
                                    April 20, 2007

       Before: MCKEE, AMBRO, Circuit Judges, and MICHEL,* Chief Circuit Judge.

                                 (Filed: April 25, 2007)


                              OPINION OF THE COURT




MICHEL, Chief Circuit Judge.


   *
      The Honorable Paul R. Michel, Chief Judge of the United States Court of Appeals
for the Federal Circuit, sitting by designation.
       Defendant David Lee Fisher appeals from the sentencing order following his

conviction for possession of a firearm by a convicted felon. Because we discern no

harmful error in the District Court’s reasoning and analysis, we will affirm the order.

                                               I.

       Because we write solely for the parties, we recite only those facts central to our

analysis. Fisher was indicted on three charges: possession of a firearm by a convicted

felon, conspiracy to obstruct justice, and obstruction of justice. At trial, the jury

convicted Fisher of the possession charge. The District Court sentenced Fisher to 327

months, which Fisher appealed to this Court. In our opinion in that earlier appeal, United

States v. Fisher, 126 Fed. Appx. 71 (3d Cir. 2005) (not precedential), we remanded to the

District Court for resentencing to consider the import, if any, of United States v. Booker,

543 U.S. 220 (2005).

       In its second sentencing hearing, the District Court received further evidence from

Fisher regarding mitigating factors. The government again relied on evidence of Fisher’s

three prior convictions. In its sentencing order, the District Court accepted the

recommendation of the presentence investigation report (“PSR”) of a two-level

enhancement for obstruction of justice. But the District Court adopted a mandatory

minimum offense level of 33 based on its determination that the preponderant evidence of

Fisher’s prior convictions qualified him as an armed career criminal under the Armed

Career Criminal Act (“ACCA”), U.S.S.G. § 4B1.4. The District Court further adopted

the PSR’s characterization of the crime as a “crime of violence” subject to an enhanced

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offense level of 34 under U.S.S.G. § 4B1.4(3)(A). Finally, the District Court also applied

a two-level downward departure for Fisher’s acceptance of responsibility, resulting in a

final offense level of 32 with a guideline range of 210 to 262 months. The District Court

sentenced Fisher to a term of 224 months.

                                             II.

       Fisher argues three errors on the part of the District Court in its sentencing order.

First, Fisher asserts that the District Court improperly enhanced his guideline offense

level based on evidence of three prior convictions when that evidence was neither

presented to a jury nor proved beyond a reasonable doubt. Second, Fisher states that the

District Court erred by enhancing his guideline offense level for obstruction of justice

since he was acquitted of that charge and insufficient evidence was produced to support

such an enhancement. Finally, Fisher argues that the District Court erred in holding that

his crime was a “crime of violence,” and enhancing his guideline offense level as a result,

since possession of a firearm, he maintains, is not a crime of violence. We turn to each

asserted error in turn.

                                              1.

       As both parties readily agree, Almendarez-Torres v. United States, 523 U.S. 224,

243-47 (1998), if still good law, holds that the fact of a prior conviction does not have to

be proven at sentencing beyond a reasonable doubt to a jury but may instead be

considered by a judge as a sentencing factor if proven by a preponderance of the

evidence. See also Apprendi v. New Jersey, 530 U.S. 466, 488 (2000). Fisher, however,

                                              3
argues that under Apprendi, Almendarez-Torres is no longer good law except as to its

own unique facts.

       The Supreme Court in Apprendi clearly held that most sentencing factors must be

presented to a jury and proved beyond a reasonable doubt, id. at 490, but when

specifically addressing Almendarez-Torres, stopped short of applying that rule to

evidence of past convictions. In fact, the Court specifically indicated that recidivism is an

exception to the Apprendi rule. See id. (“Other than the fact of a prior conviction, any

fact that increases the penalty for a crime . . . must be submitted to a jury, and proved

beyond a reasonable doubt.”) (emphasis added).1 As such, and as we have previously

held, Apprendi limited the scope and applicability of Almendarez-Torres but left it as

controlling authority as to recidivism.2 See United States v. Coleman, 451 F.3d 154, 159-

60 (3d Cir. 2006).

       While the reasoning in Apprendi may arguably apply to recidivism as well, neither

the Supreme Court nor this Court has so held.3 See id. at 159-60. Thus we have no

   1
     See also Apprendi, 530 U.S. at 488 (observing that in Jones v. United States, 526
U.S. 227, 119 S. Ct. 1215 (1999), the Court noted that “[t]he majority and the dissenters
in Almendarez-Torres disagreed over the legitimacy of the Court’s decision to restrict its
holding to recidivism, but both sides agreed that the Court had done just that”).
   2
     As the Supreme Court reasoned in Apprendi, recidivism is unlike other sentencing
factors. For example, a past conviction by definition indicates that the charge and its
attendant facts were proven beyond a reasonable doubt to a jury. Thus the procedural
safeguards of the Fifth and Sixth Amendments were effected at some point with regard to
those convictions. Apprendi, 530 U.S. at 488.
   3
     We recognize that a Justice of the Supreme Court has criticized Almendarez-Torres
and urged its outright reversal. See Shepard v. United States, 544 U.S. 13, 27-28 (2005)

                                              4
discretion but to hold that recidivism need not be proven to a jury beyond a reasonable

doubt when considered as a sentencing factor. Id. As such, Fisher’s appeal of the District

Court’s consideration of his three prior convictions must be rejected.

                                             2.

       Examining the sentencing order and PSR makes clear that the District Court’s

adoption of the PSR’s enhancement for obstruction of justice was irrelevant to the

sentence. The enhancement under the ACCA, discussed above, has a minimum offense

level of 33. The obstruction of justice enhancement was not applied to raise this level to

35; rather, the PSR makes clear that this enhancement was subsumed entirely by the

mandatory minimum offense level of the ACCA enhancement. As such, any error by the

District Court as to the obstruction of justice enhancement was harmless.

                                             3.

       With regard to the enhancement for a “crime of violence,” the government

concedes that the District Court erred as Fisher suggests. However, the government

argues that the error was harmless in light of the two-level downward departure imposed

by the District Court. Assuming arguendo that the District Court would have applied the

same downward departure even to a lower starting offense level, his total offense level

then would have been 31 (namely the minimum under the ACCA of 33 with the two-level



(Thomas, J., concurring). However, the Supreme Court is the only tribunal with the
power to act on such recommendations, and we cannot preemptively apply a rule that
contradicts a Supreme Court decision that has not been reversed.

                                             5
downward departure). The guideline range for offense level 31 is 188 to 235 months.

Since Fisher’s sentence of 224 months is well within this range, we conclude that the

District Court’s error was indeed harmless. See United States v. Flores, 454 F.3d 149,

162 (3d Cir. 2006).

      As a result, we will affirm the District Court’s sentencing order.




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