Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-12-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4566




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Recommended Citation
"USA v. Lowery" (2006). 2006 Decisions. Paper 1758.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1758


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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT




                                      No. 04-4566


                           UNITED STATES OF AMERICA

                                            v.

                                 RICHARD LOWERY,

                                                                      Appellant


                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                             (D.C. Crim. No. 99-00267-1)
                     Honorable Bruce W. Kauffman, District Judge


                      Submitted under Third Circuit LAR 34.1(a)
                                 December 9, 2005

          BEFORE: RENDELL, FISHER and GREENBERG, Circuit Judges

                                (Filed: January 12, 2006)


                              OPINION OF THE COURT


GREENBERG, Circuit Judge.

      This is an appeal in a criminal case raising sentencing issues following a plea of

guilty. On May 11, 1999, a grand jury indicted defendant-appellant Richard Lowery in a
single count for possession of a firearm by a convicted felon in violation of 18 U.S.C. §§

922(g)(1) and 924(e). On July 26, 1999, the United States filed a Notice of Defendant’s

Prior Convictions for Enhanced Sentencing under 18 U.S.C. § 924(e) in which the

government described his four prior convictions for serious drug offenses that made him

subject to the enhanced penalties in section 924(e)(1).

       On October 7, 1999, Lowery and the government entered into a plea agreement in

which Lowery agreed to plead guilty to the indictment. The plea agreement provided that

the court could sentence Lowery to life imprisonment, with a 15-year mandatory

minimum term of imprisonment, to be followed by three years of supervised release and

could require him to pay a $250,000 fine. The plea agreement, in addition to setting forth

that Lowery stipulated to the facts of the offense in this case, provided that Lowery

stipulated to having the four prior convictions the government set forth in its July 26,

1999 notice. The plea agreement also set forth that Lowery’s offense level was 34 and

that his criminal history category was VI. It provided, however, that he had demonstrated

acceptance of responsibility and thus was entitled to a 2-level downward offense level

adjustment under U.S.S.G. § 3E1.1(a) and that he also was entitled to a 1-level downward

adjustment under U.S.S.G. § 3E1.1(b). Thus, his total offense level was 31, which,

together with his criminal history category of VI, set his guideline custodial range as

between 188 to 235 months.

       On April 10, 2000 the court imposed on Lowery a custodial sentence of 215



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months followed by five years of supervised release. The court, however, did not impose

a fine.

          Lowery did not file a timely appeal from the sentence. He, however, filed a

motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence charging that

his attorney had been ineffective for failing to file a notice of appeal. The court granted

that motion on November 24, 2004, and allowed Lowery to appeal, which he did. The

district court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction under 28

U.S.C. § 1291 and 18 U.S.C. § 3742.

          Lowery raises three issues on this appeal:

          1. He was improperly subjected to a statutory sentence increase under 18
          U.S.C. § 924(e) based on his prior convictions in view of the fact that his
          prior convictions, which should be treated as elements of the offense, were
          not charged in the indictment, in violation of his Fifth Amendment right to
          be subject to a maximum punishment based solely on facts charged in the
          indictment and his Sixth Amendment right to a jury trial.

          2. He is entitled to resentencing pursuant to United States v. Booker, 

, 

(2005), given that the district court treated the
          sentencing guidelines as mandatory, rather than advisory and did not
          consider the statutory sentencing factors in 18 U.S.C. § 3553(a), as required
          by Booker, but instead sentenced within the guideline range.

          3. The government breached the terms of his plea agreement, which states
          that the maximum term of supervised release is three years, by remaining
          silent when the sentencing court imposed a five-year term of supervised
          release, and must, on remand, recommend a three-year term of supervised
          release be imposed in accordance with the agreement.

          We reject Lowery’s first contention as he was free to plead guilty to the indictment

and conclusively establish the existence of his prior convictions even though they were

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not charged in the indictment. See Almendarez-Torres v. United States, 

,

(1998); United States v. Ordaz, 

, 241 (3d Cir. 2005). We,

however, accept his second argument, and, thus on the basis of United States v. Davis,

, 165 (3d Cir. 2005) (en banc), Lowery is entitled to be resentenced. This

disposition renders his third contention moot on this appeal as we do not know what

period of supervised release the court will impose when it resentences.

       For the foregoing reasons the judgment of conviction and sentence entered April

10, 2000, and reentered November 24, 2004, will be reversed but only with respect to the

sentence. We will remand the case to the district court for resentencing.




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