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


4-19-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3017




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Recommended Citation
"USA v. Spencer" (2005). 2005 Decisions. Paper 1341.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1341


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                                                                               NOT PRECEDENTIAL

                             UNITED STATES COURT OF APPEALS
                                  FOR THE THIRD CIRCUIT

                                                 No: 03-3017

                                  UNITED STATES OF AMERICA

                                                         v.

                                       DAVID O'NEIL SPENCER,
                                                   Appellant

                               On Appeal From the United States Court
                               For the Eastern District of Pennsylvania
                                   D.C. Criminal No. 02-cr-00788
                                District Judge: Hon. Berle M. Schiller

                                          Argued: June 22, 2004

                          Before: NYGAARD, McKEE and CHERTOFF,*
                                       Circuit Judges

                                     (Opinion filed: April 19, 2005)

David L. McColgin, Esq.
Brett G. Sweitzer, Esq. (Argued)
Defender Association of Philadelphia
Federal Court Division
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106

        Attorneys for Appellant




   *
      J u d g e C h e r to f f h e a r d o r a l a r g u m e n t in th is c a s e b u t r e s ig n e d p r io r to
th e tim e th e o p in io n w a s f ile d . T h e o p in io n is f ile d b y a q u o r u m o f th e
p a n e l. 2 8 U .S .C . § § 4 6 ( d ) .
Francis C. Barbieri, Jr., Esq. (Argued)
Suite 1250
Office of the United States Attorney
615 Chestnut Street
Philadelphia, PA 19106

       Attorney for Appellee

                                          OPINION
McKee, Circuit Judge

       David O’Neil Spencer appeals the judgment of conviction and sentence that was

entered following his conditional guilty plea after the District Court denied his motion to

suppress. See United States v. Zudnick, § 523(a)(8) F.2d 848 (3d Cir. 1975). For the

reasons that follow, we will affirm.

                                              I.

       Inasmuch as we are writing only for the parties who are familiar with the

procedural and factual history of this case, we need not reiterate the background except

insofar as may be helpful to our brief discussion.

       In his opening brief, Spencer only challenged the District Court’s denial of his

suppression motion. We have reviewed the District Court’s very careful and thoughtful

Memorandum and Order, dated March 27, 2003, in which the court explained its ruling

on Spencer’s Fourth Amendment claim. Since we can add little to the District Court’s

thoughtful analysis, we will affirm the denial of Spencer’s suppression motion

substantially for the reasons set forth by the District Court in its March 27, 2003

Memorandum and Order.

                                              2
       After the opening briefs were filed, the Supreme Court decided United States v.

Booker. Briefly stated, “[t]he Court held that 

. § 3553(b)(1), the provision of

the Sentencing Reform Act that makes the Guidelines mandatory, was [unconstitutional]

and that it must be severed and excised [from the Guidelines].” United States v. Ordaz,

, 239 (3d. Cir. 2005). The Court also reaffirmed the holding in Apprendi v.

New Jersey, 

(2000), which stated, “[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."

       Following that decision, in response to an inquiry from this court, Spencer asked to

be resentenced pursuant to Booker even though he had not originally challenged his

sentence. When Spencer was originally sentenced, the attack he now makes on his

sentence appeared foreclosed under United States v. Williams, 

, 860-63 (3d.

Cir. 2000). However, given the teachings of Booker, it is now clear that the District

Court erred in enhancing Spencer’s sentence under U.S.S.G. § 2K2.1(b)(5) based solely

upon the court’s finding that Spencer possessed a gun “in connection with” another

felony offense. That question was neither admitted during Spencer’s change of plea

colloquy, nor proven to a jury (or to a judge at a bench trial) beyond a reasonable doubt.

Moreover, when Spencer was initially sentenced, the District Court understandably

thought that it had to impose a sentence consistent with the appropriate guideline range.

However, it is now clear that the court was free to exercise its discretion in determining a



                                             3
sentence and that the guideline range, though relevant, was not determinative.

      Accordingly, we will remand this matter to the District Court for resentencing

pursuant to the pronouncements in United States v. Booker.




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