Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-28-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2355




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"USA v. Austin" (2008). 2008 Decisions. Paper 1134.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1134


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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-2355


                           UNITED STATES OF AMERICA

                                            v.

                                 RANDALL AUSTIN,
                                            Appellant


             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                            (D.C. Crim. No. 03-cr-00682)
                  District Judge: The Honorable Petrese B. Tucker


                       Submitted Under Third Circuit LAR 34.1(a)
                                     May 6, 2008


       Before: SCIRICA, Chief Judge, BARRY and HARDIMAN, Circuit Judges

                             (Opinion Filed: May 28, 2008)


                                        OPINION


BARRY, Circuit Judge

      Appellant Randall Austin appeals the District Court’s imposition of a 240-month

term of imprisonment following his conviction for possession of a firearm by a convicted

felon in violation of 18 U.S.C. § 922(g)(1). The District Court imposed the sentence after
finding that the government had proven by a preponderance of the evidence that the

criteria for application of the Armed Career Criminal (“ACC”) enhancement of 18 U.S.C.

§ 924(e) to Austin had been satisfied. Had the District Court not applied the ACC

enhancement, Austin would have faced a statutory maximum sentence of 120 months in

prison.

          Austin raises a single issue on appeal, namely whether the government’s failure to

charge all of the ACC predicate offenses in the indictment and to prove them to a jury

beyond a reasonable doubt violated his Fifth and Sixth Amendment rights. This argument

is clearly foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United

States, 

(1998). See United States v. Vargas, 

, 105 (3d Cir.

2007) (declaring that Almendarez-Torres “continues to bind our decisions”); United

States v. Coleman, 

, 161 (3d Cir. 2006) (stating that “Almendarez-Torres

remains good law”); United States v. Ordaz, 

, 241 (3d Cir. 2005) (noting that

“[t]he holding in Almendarez-Torres remains binding law”). We will affirm.