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


6-14-2005

USA v. Hill
Precedential or Non-Precedential: Precedential

Docket No. 04-3904




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Recommended Citation
"USA v. Hill" (2005). 2005 Decisions. Paper 918.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/918


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                                         PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                ____________

                     NO. 04-3904
                    ____________

          UNITED STATES OF AMERICA

                          v.

                   JAHEED HILL

                                           Appellant
                    ____________

   On Appeal from the United States District Court
             for the District of New Jersey
                (D.C. No. 03-cr-00543)
    District Judge: Honorable Mary Little Cooper
                     ____________

  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
            and Third Circuit I.O.P. 10.6
                   April 7, 2005

BEFORE: RENDELL, FISHER and VAN ANTWERPEN,
               Circuit Judges

                (Filed: June 14, 2005)
Lisa Van Hoeck, Esq.
Assistant Federal Public Defender
22 South Clinton Avenue
Station Plaza #4, Fourth Floor
Trenton, New Jersey 08609
Counsel for Appellant Jaheed Hill

George S. Leone, Esq.
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102

Glenn J. Moramarco, Esq.
Assistant U.S. Attorney
Camden Federal Bldg. & Courthouse
401 Market Street, Fourth Floor
Camden, New Jersey 08101
Counsel for Appellee United States of America

                       ____________

                OPINION OF THE COURT
                     ____________

VAN ANTWERPEN, Circuit Judge

       Jaheed Hill (“Appellant”) was sentenced to a term of
imprisonment of 90 months and three years supervised release
by the United States District Court for the District of New
Jersey after pleading guilty to one count of unlawful

                              2
possession of a firearm by a convicted felon, in violation of
18 U.S.C. §§ 922(g)(1) & (2). He appealed this sentence,
arguing that in light of Blakely v. Washington, 542 U.S. ___,

(2004), his sentence must be vacated and the
matter remanded for re-sentencing. Following the release of
the Supreme Court’s decision in United States v. Booker, 543
U.S. ___, 

(2005), Appellant also filed a Motion
for Summary Action pursuant to Third Circuit Internal
Operating Procedure 10.6, requesting summary remand. We
now affirm the sentence of the District Court and deny
Appellant’s summary remand motion.

       At his sentencing hearing, Appellant urged the District
Court to hold the Sentencing Guidelines unconstitutional
pursuant to the Supreme Court’s holding in Blakely. The
District Court stated it would await further developments
before holding that the Guidelines unconstitutional, choosing
instead to apply the Guidelines to Appellant’s sentence.1
However, the District Court also issued an alternative


    1
       Appellant’s sentence was based solely on his criminal
history and the factual stipulations contained in his plea
agreement. His enhanced sentence therefore implicates no Sixth
Amendment violation. See United States v. Ordaz, 

, 240 (3d Cir. 2005) (rejecting the argument that the facts of
prior convictions should have been submitted to a jury); see also

(“Any fact . . . necessary to support a
sentence exceeding the maximum authorized by the facts . . .
must be admitted by the defendant or proved to a jury beyond a
reasonable doubt”).

                               3
sentence per our instructions in United States v. Dickerson,

, 260 n.9 (3d Cir. 2004). Specifically, the
District Court stated:

       In rendering this sentence I will, of course,
       follow the suggestion of various cases since
       Blakely, and I will base my sentence, whatever
       it turns out to be, I’ll base it, alternatively, on an
       indeterminate sentencing scheme.

        It is clear that the District Court believed Appellant’s
sentence was justified both, and alternatively, by the
Sentencing Guidelines and under an indeterminate sentencing
scheme. Although in United States v. Davis we expressed no
view on the impact of alternative sentences, 

,
166 (3d Cir. 2005), we now join several of our sister circuits
and conclude that where, as here, a District Court clearly
indicates that an alternative sentence would be identical to the
sentence imposed under the Guidelines, any error that may
attach to a defendant’s sentence under Booker is harmless.
See United States v. Antonakopoulos, 

, 81 (1st
Cir. 2005); see also United States v. Thompson, 

,
535 (6th Cir. 2005); United States v. Palladino, 

,
482 (7th Cir. 2005); United State v. Marcussen, 

,
985 (8th Cir. 2005).2 We therefore deny Appellant’s motion,


  2
    We also note that our position is in accord with the view of
the Fourth Circuit, which has been expressed in a series of
unpublished opinions. See United States v. Shabazz, 127
Fed.Appx. 662 (4th Cir. 2005); see also United States v.

                                 4
and since Appellant has not raised any issues on appeal other
than those we have discussed, we will affirm the sentence of
the District Court.

__________________

TO THE CLERK:

      Please file the foregoing opinion.




Martinez, 127 Fed.Appx. 107 (4th Cir. 2005); United States v.
Washington, 124 Fed.Appx. 809 (4th Cir. 2005); United States
v. Anderson, 124 Fed.Appx. 211 (4th Cir. 2005).

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