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


10-28-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4850




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 03-4850


                           UNITED STATES OF AMERICA

                                            v.

                                 DESMOND NELSON,
                                         Appellant


                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                               (D.C. Civil No. 03-cr-00215)
                      District Judge: Honorable James K. Gardner


                       Submitted Under Third Circuit LAR 34.1(a)
                                  September 26, 2005

             Before: RENDELL, FUENTES, and GARTH, Circuit Judges.

                                (Filed October 28, 2005 )


                               OPINION OF THE COURT


RENDELL, Circuit Judge.

       Desmond Nelson pled guilty to one count of felon in possession of a firearm and

ammunition, in violation of 18 U.S.C. § 922(g)(1), and was sentenced to 80 months in

prison. As part of his guilty plea, Nelson waived his rights to appeal his sentence except
under limited circumstances. In this appeal, Nelson challenges the District Court’s

refusal to depart downward based on his contention that his criminal history over-

represented his prior criminal record under section 4A1.3 of the U.S. Sentencing

Guidelines Manual. He also argues that the application of U.S.S.G. § 2K2.1(a)(ii) to

adjust his base offense level for two prior drug or violent felony convictions violated

Blakely v. Washington. 

(2004). Although United States v. Booker, 125 S.

Ct. 738 (2005), had not been decided at the time of briefing, we directed Nelson to

comment on the applicability of Booker to his case. He responded by raising a Booker

challenge, arguing that his sentence was improper because the District Court applied the

Sentencing Guidelines on a mandatory, rather than merely advisory, basis, in a letter

dated March 24, 2004 [sic]. We have jurisdiction to review Nelson’s sentence pursuant to

28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

       The events that form the basis for the underlying conviction occurred in October

2002, when Desmond Nelson was arrested by the police after a domestic argument during

which he had pulled a gun from his waistband. Following up on the report of this

incident, the police stopped the taxi in which Nelson was riding and found no weapon,

but did recover a small amount of marijuana. Later, after obtaining a search warrant, they

located a Ruger .357 magnum revolver in Nelson’s lockbox. This event was the latest in

a string of encounters by Nelson with the criminal justice system dating back to 1996,

when, at age 16, he was adjudicated delinquent based upon attempted first degree robbery



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and assault in the state of Delaware. Between 1996 and 2002, Nelson had been

adjudicated delinquent as a juvenile on three separate occasions for possession of

marijuana and unauthorized use of an automobile. Thereafter, he was arrested three times

for controlled substance offenses, and twice for driving under the influence. He pled

guilty to most of these offenses, which were interspersed with numerous failures to

appear for court hearings.

        The District Court had little difficulty determining that Nelson’s criminal history

category–which was Category VI–did not overstate his criminal history or the likelihood

that he would commit further crimes. The District Court noted that the defendant’s

criminal history, as outlined in the Presentence Report, was “representative of an

unbroken chain of criminal conduct by this defendant from the age of 16 on and is, thus,

deserving of the assigned criminal history category.” Tr. of Sentencing Hr’g 36, Dec. 17,

2003.

        The appellate waiver provision of Nelson’s plea agreement expressly exempted

challenges to the District Court’s denial of any motion for downward departure based on

a claim that Nelson’s criminal history category over-represented his prior criminal record.

We conclude that this exception is broad enough to include a Booker challenge to the

District Court’s downward departure decision. In denying Nelson’s request for a

downward departure, the “District Court erred by treating the Guidelines as mandatory

rather than advisory.” United States v. Davis, 

, 164 (3d Cir. 2005) (en banc).



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Under these circumstances, we presume that the District Court’s error prejudiced the

defendant, 

and will therefore vacate Nelson’s sentence and remand for re-

sentencing.

       However, Nelson waived his rights to challenge the base offense level calculation

except on limited grounds, and his Blakely claim does not fit within the scope of the

challenges preserved. Accordingly, we have no jurisdiction to address this issue on

appeal.1 See United States v. Lockett, 

, 214 (3d Cir. 2005).

       Because Nelson’s Booker challenge to the District Court’s ruling on the downward

departure falls within one of the exceptions to the appellate waiver provision of his plea

agreement, we will VACATE his sentence and REMAND for re-sentencing in light of

Booker.




  1
   This would not preclude the sentencing court, however, from revisiting this issue as
part of re-sentencing on remand.


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