“The error is not that a judge (by a preponderance of the evidence) determined facts under the Guidelines which increased a sentence beyond that authorized by the jury verdict or an admission by the defendant; the error is only that the judge did so in a mandatory Guidelines system.”
How later courts described this case
- “The error is not that a judge (by a preponderance of the evidence) determined facts under the Guidelines which increased a sentence beyond that authorized by the jury verdict or an admission by the defendant; the error is only that the judge did so in a mandatory Guidelines system.”
Written by the judges who cited it.
The opinion
Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
12-4-2006
USA v. Rivera
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5329
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 05-5329
__________
UNITED STATES OF AMERICA,
Appellee,
vs.
RYAN RIVERA,
Appellant.
__________
On Appeal from the United States District Court
For the District of New Jersey
(Crim. No. 05-63)
District Judge: Honorable Jerome B. Simandle
__________
Submitted Under Third Circuit L.A.R. 34.1(a)
November 27, 2006
___________
Before: FUENTES and GARTH, Circuit Judges, and POLLAK, District Judge *
(Opinion Filed: December 4, 2006)
___________
OPINION
__________
*
The Honorable Louis H. Pollak, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
GARTH, Circuit Judge:
In this appeal, Ryan Rivera challenges the 27 month prison sentence he received
for the crime of possession of drugs in a federal prison. Rivera claims that the district
court improperly increased his sentence based on prior convictions that were neither
admitted nor submitted to a jury. Because Almendarez-Torres v. United States, 523 U.S.
224 (1998), which permits a sentencing court to find facts relating to prior convictions, is
still binding on us, we will affirm.
I.
The facts of this case are straightforward and undisputed. Since 2002, appellant
Ryan Rivera had been imprisoned at the Fairton Federal Correctional Institution on a
conviction for being a felon-in-possession of a firearm. On August 22, 2004, Rivera was
observed receiving suspected contraband from a visitor. Several days later, 1.217 grams
of cocaine were recovered from his person.1 On August 24, 2005, Rivera pleaded guilty,
pursuant to a plea agreement, to a one-count Superseding Information, charging him with
possessing a prohibited object in a federal prison, specifically a narcotic drug, in violation
1
The specific facts of Rivera’s receipt of drugs during this visit are somewhat
unusual. According to the Presentence Investigation Report (“PSR”), Rivera and his
guest were eating “Dorito” tortilla chips, each from an individual bag. A prison employee
noticed the visitor hold his Dorito bag up to his mouth and tilt his head forward; Rivera
then picked up the same bag, tilted his head back, and poured its contents into his mouth.
Suspicious, prison staff isolated Rivera, who eventually passed a balloon containing a
substance later identified as cocaine and/or codeine.
-1-
of 18 U.S.C. §§ 1791(a)(2), (b)(1), and (b)(2).2
The PSR recommended a total offense level of 11. The PSR further calculated
Rivera’s Criminal History pursuant to U.S.S.G. § 4A1.1.3 The PSR assessed three
2
Section 1791(a)(2) provides that “[w]hoever . . .being an inmate of a prison,
makes, possesses, or obtains, or attempts to make or obtain, a prohibited object shall be
punished as provided in subsection (b) of this section.”
The punishment for violations of section 1791(a)(2) is set forth in section 1791(b),
which states, in pertinent part:
The punishment for an offense under this section
is a fine under this title or--
(1) imprisonment for not more than 20 years, or
both, if the object is specified in subsection
(d)(1)(C) of this section;
(2) imprisonment for not more than 10 years, or
both, if the object is specified in subsection
(d)(1)(A) of this section
Sections 1791(d)(1)(A) and (d)(1)(C) referred to in section 1791(b) define the term
“prohibited object”in section 1791(a)(2) to include “a narcotic drug” or “a controlled
substance in schedule I or II, other than marijuana.”
3
U.S.S.G. § 4A1.1 provides:
The total points from items (a) through (f)
determine the criminal history category in the
Sentencing Table in Chapter Five, Part A.
(a) Add 3 points for each prior sentence of
imprisonment exceeding one year and one month.
(b) Add 2 points for each prior sentence of
imprisonment of at least sixty days not counted in
(a).
(c) Add 1 point for each prior sentence not
counted in (a) or (b), up to a total of 4 points for
this item.
(d) Add 2 points if the defendant committed the
-2-
criminal history points for a 1997 New York drug distribution conviction; three points for
a 1997 New York grand larceny conviction; three points for a 2003 New York drug
possession conviction; three points for Rivera’s 2002 federal felon-in-possession
conviction; one point for a 2003 conviction for possessing contraband in prison; and two
points for committing the instant offense while imprisoned, for a total of 15 points – and a
resulting criminal history category of VI. The corresponding guidelines sentencing range
was 27 to 33 months.
Rivera was sentenced on December 2, 2005. At sentencing, Rivera argued that his
prior convictions, which were neither admitted nor submitted to a jury, could not,
instant offense while under any criminal justice
sentence, including probation, parole, supervised
release, imprisonment, work release, or escape
status.
(e) Add 2 points if the defendant committed the
instant offense less than two years after release
from imprisonment on a sentence counted under
(a) or (b) or while in imprisonment or escape
status on such a sentence. If 2 points are added for
item (d), add only 1 point for this item.
(f) Add 1 point for each prior sentence resulting
from a conviction of a crime of violence that did
not receive any points under(a), (b), or (c) above
because such sentence was considered related to
another sentence resulting from a conviction of a
crime of violence, up to a total of 3 points for this
item. Provided, that this item does not apply
where the sentences are considered related
because the offenses occurred on the same
occasion.
-3-
consistent with the Sixth Amendment, be considered to increase his sentence.4 Rivera
acknowledged that, under Almendarez-Torres v. United States, 523 U.S. 224 (1998), a
sentencing judge is permitted to find facts relating to prior convictions and enhance the
maximum penalty accordingly. Rivera argued, however, that the more recent Supreme
Court cases of Shepard v. United States, 544 U.S. 13 (2005) and United States v. Booker,
543 U.S. 220 (2005) created “enough of a cloud” over Almendarez-Torres “to preserve the
issue for appellate consideration.” A56-60. Rivera did not object to the factual findings
regarding his prior sentences, but argued that the court should disregard those facts,
leaving him with a criminal history category of III and a corresponding guidelines range of
12 to 19 months imprisonment.
The district court rejected Rivera’s argument and sentenced him – based upon his
prior convictions and the resulting criminal history category of VI – to 27 months
imprisonment, the bottom of the recommended guidelines range. Because Rivera
committed the crime while incarcerated, the court ordered that the sentence run
concurrently to the sentence he was then serving. A90. Rivera filed a timely notice of
appeal.
II.
Rivera makes just one argument on appeal. Rivera asserts that the district court
4
Rivera does not here challenge the criminal history points attributable to the
conviction he was then serving nor those that result because the instant criminal conduct
occurred while he was imprisoned.
-4-
violated his Sixth Amendment right to trial by jury by increasing his sentence based upon
prior convictions that were neither admitted nor submitted to a jury. Rivera acknowledges
that the Supreme Court’s 1998 decision in Almendarez-Torres specifically held that
recidivism, – i.e., the fact of prior convictions, is not an element of a crime, and therefore
need not be found by a jury. Id. at 239-48. Rivera argues, however, that Almendarez-
Torres has, by subsequent decisions, been “sufficiently undermined to compel the
conclusion that the Sixth Amendment prohibits a district court from finding the fact of a
prior conviction and using that fact to enhance a defendant’s sentence.” App. Br. at 11.
Rivera’s argument fails for two independent reasons. First, none of the cases he
cites – Shepard, Booker, and Apprendi v New Jersey, 530 U.S. 466 (2000) – have, in fact,
implicitly or explicitly overruled Almendarez-Torres. In Apprendi, the Court specifically
held that “[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.” Id. at 490(emphasis added). Likewise, Booker, while
striking down the statutory provisions making the guidelines mandatory as violative of the
Sixth Amendment, preserved the holding of Almendarez-Torres that prior convictions
need not be found by a jury:
Any fact (other than a prior conviction) which is
necessary to support a sentence exceeding the
maximum authorized by the facts established by a
plea of guilty or a jury verdict must be admitted by
the defendant or proved to a jury beyond a
reasonable doubt.
-5-
Booker, 543 U.S. at 244 (emphasis added).
The final case cited by Rivera, Shepard v. United States, 544 U.S. 13 (2005), does
cast some doubt upon the holding of Almendarez-Torres. Shepard involved the Armed
Career Criminal Act, which mandates a minimum 15-year prison sentence for anyone
possessing a firearm after three prior convictions for serious drug offenses or violent
felonies. The Act makes burglary a violent felony only if committed in a building or
enclosed space (“generic burglary”), not in a boat or motor vehicle. In Shepard, the Court
held that, in determining whether prior burglary convictions entered after guilty pleas were
“generic” and thus “violent felonies”under the Act, a sentencing court could not look to
police reports or complaint applications but rather had to rely solely on charging
documents, elements of offenses, plea colloquies, and express findings by the trial judge.
Shepard, 544 U.S. at 26. A plurality of the Court held that in a state where the statutory
definition of burglary was limited to the elements of “generic” burglary, “a judicial finding
of a disputed prior conviction is made on the authority of Almendarez-Torres.” Shepard,
544 U.S. at 24. However, the plurality contrasted this to states where the statutory
definition of burglary encompassed more than the “generic” offense, such that relying on
police reports or complaint applications – as opposed to charging documents, jury
instructions, plea colloquies, or express findings of fact by the trial judge – would be “too
far removed from the conclusive significance of a prior judicial record, and too much like
-6-
the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly
authorizes a judge to resolve the dispute.” Id. The Shepard court thus limited the scope of
judicial fact-finding permitted under Almendarez-Torres.
In a dissent by then Justice O’Connor, several members of the Court expressed
concern about what the decision portended for the Almendarez-Torres rule: “[T]oday’s
decision reads Apprendi to cast a shadow possibly implicating recidivism determinations,
which until now had been safe from such formalism. . . .” Shepard, 544 U.S. at 38
(O'Connor, J., dissenting). And Justice Thomas, who had expressed his dissatisfaction
with the Almendarez-Torres exception in his concurring opinion in Apprendi, see 530 U.S.
at 520-21 (Thomas, J., concurring), repeated his view that “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.” Shepard, 544
U.S. at 27-8 (Thomas, J., concurring) (internal citations omitted).
This court has already considered the question whether Almendarez-Torres is still
good law despite Booker, Apprendi, and Shepard. In United States v. Ordaz, 398 F.3d 236
(3d Cir. 2005), the defendant, who had been convicted for conspiring to distribute cocaine,
challenged his thirty-year sentence claiming that it was the result of improper judicial fact-
finding. Although the conspiracy charge ordinarily carried a twenty-year maximum
sentence, a related statute, 21 U.S.C. § 841(b)(1)(C), provides that “if any person commits
such a violation after a prior conviction for a felony drug offense has become final, such
-7-
person shall be sentenced to a term of imprisonment of not more than 30 years . . . .” Id.
The district court found that the defendant had been convicted of a felony drug offense
that had become final and, applying section 841(b)(1)(C), sentenced the defendant to the
enhanced thirty years prison term.
Like Rivera, the defendant in Ordaz argued that the fact of his prior conviction
should have been submitted to the jury. The Court, while acknowledging some tension
between Almendarez-Torres and subsequent Supreme Court cases, nevertheless held that
Almendarez-Torres remains good law:
Ordaz argues that because of the decision in
Blakely, “it is clear that Almendarez-Torres cannot
stand.” . . . However, the Supreme Court has made
clear that “if a precedent of this Court has direct
application in a case, yet appears to rest on reasons
rejected in some other line of decisions, the Court
of Appeals should follow the case which directly
controls, leaving to this Court the prerogative of
overruling its own decisions.” Rodriguez de Quijas
v. Shearson/American Express, Inc., 490 U.S. 477,
484, 104 L. Ed. 2d 526, 109 S. Ct. 1917 (1989); see
also Agostini v. Felton, 521 U.S. 203, 237, 138 L.
Ed. 2d 391, 117 S. Ct. 1997 (1997).
....
[A]s an inferior federal court we have the
responsibility to follow directly applicable Supreme
Court decisions. . . .
The holding in Almendarez-Torres remains
binding law, and nothing in Blakely or Booker
holds otherwise.
Ordaz, 398 F.3d at 240-241.
-8-
Ordaz was decided just weeks prior to the Supreme Court’s decision in Shepard,
which Rivera claims casts additional doubt on Almendarez-Torres. In United States v.
Coleman, 451 F.3d 154 (3d Cir. 2006), this Court considered the impact, if any, of Shepard
upon the rule set forth in Almendarez-Torres. Coleman was convicted of several firearm
possession violations. At sentencing, the district court determined that Coleman had five
prior convictions, and thus qualified as an armed career criminal under 18 U.S.C. § 924(e).
This increased the statutory minimum for his firearm possession offenses to at least 15
years in prison.
On appeal, Coleman argued that, because his prior convictions increased the
statutory minimum penalty, those offenses should have been charged in the indictment and
proved to the jury beyond a reasonable doubt, and that the government's failure to do so
violated the Sixth Amendment. He asserted that Almendarez-Torres had been eviscerated
by Shepard’s holding limiting the sources a sentencing court could rely upon to determine
whether a previous burglary is “generic” for the purposes of enhancing a sentence based
upon the prior conviction. This court rejected the argument that Shepard had implicitly
overruled Almendarez-Torres:
The various opinions in Shepard appear to agree on
one thing: the door is open for the Court one day to
limit or overrule Almendarez-Torres. But that day
has not yet come, and we are well aware of the
Supreme Court's admonition that “if a precedent of
the Supreme Court has direct application in a case,
yet appears to rest on reasons rejected in some other
line of decisions, the Court of Appeals should
-9-
follow the case which directly controls, leaving to
the Supreme Court the prerogative of overruling its
own decisions.” [United States v.] Francisco, 165
Fed. Appx 144, 148 (3d Cir. 2006) (quoting
Agostini v. Felton, 521 U.S. 203, 237, 117 S. Ct.
1997, 138 L. Ed. 2d 391 (1997)). Therefore, we
hold that Shepard did not affect the continuing
validity of Almendarez-Torres.
Coleman, 451 at 161. Several other Circuits have held likewise. See, e.g., United States v.
Childs, 403 F.3d 970, 972 (8th Cir. 2005); United States v. Schlifer, 403 F.3d 849, 852 (7th
Cir. 2005); United States v. Moore, 401 F.3d 1220, 1224 (10th Cir. 2005).
Because Almendarez-Torres remains good law, the district court properly found the
facts of Rivera’s prior convictions and a corresponding criminal history category of VI.
This finding, together with the unchallenged offense level of 11, resulted in a guidelines
range of 27 to 33 months. The district court’s sentence of 27 months – the very bottom of
the range – was not improper.
III.
Rivera’s argument also fails for an entirely independent reason. The remedial
portion of Booker demonstrates that judicial fact-finding by the preponderance of the
evidence standard is unconstitutional only in the context of a mandatory sentencing regime.
United States v. Miller, 417 F.3d 358, 362-63 (3d Cir. 2005); United States v.
Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005); United States v. Crosby, 397 F.3d 103,
112 (2d Cir. 2005); United States v. Dalton, 409 F.3d 1247, 1252 (10th Cir. 2005). In other
-10-
words, the Sixth Amendment is not violated simply because a judge finds sentencing facts
under the guidelines; rather, to trigger constitutional error, the judge must do so pursuant to
a mandatory guidelines system. Where, as here, such judicial fact-finding occurs in an
advisory guidelines scheme and is within the statutory range, it raises no Sixth Amendment
issues. Antonakopoulos, 399 F.3d at 75 (“The error is not that a judge (by a preponderance
of the evidence) determined facts under the Guidelines which increased a sentence beyond
that authorized by the jury verdict or an admission by the defendant; the error is only that
the judge did so in a mandatory Guidelines system.”). Here, there is no dispute that the
district court sentenced Rivera under an advisory guidelines system, and the final sentence
was reasonable and within the statutory maximum.
IV.
The December 2, 2005 order of the district court sentencing Rivera to 27 months
imprisonment will be affirmed.
-11-