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


8-18-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3424




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 05-3424


                           UNITED STATES OF AMERICA

                                            v.

                                   ROLAND AMOS,
                                           Appellant


                       On Appeal from the United States District
                           Court for the District of New Jersey
                                 D.C. Crim. 03-cr-00774
                     District Judge: The Honorable John W. Bissell


                       Submitted Under Third Circuit LAR 34.1(a)
                                    July 11, 2006


                Before: SMITH, ALDISERT and ROTH, Circuit Judges

                            (Opinion Filed: August 18, 2006 )


                                        OPINION


ALDISERT, Circuit Judge

      Following remand by us for re-sentencing, Roland Amos was sentenced to 140

months’ imprisonment and now appeals. He contends that he should have received a

sentence by the United States District Court for the District of New Jersey below the
range provided by the advisory guidelines. We have jurisdiction to hear his appeal

pursuant to 18 U.S.C. § 3742(a)(1). For the reasons explained below, we will affirm.

                                             I.

       The parties are familiar with the facts and proceedings in the District Court, so we

will only briefly revisit them here. On July 3, 2002, Roland Amos was arrested and

charged with distributing, and possessing with intent to distribute more than five grams of

cocaine base (crack), in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(B)(iii). In

September 2003, Amos pled guilty to those charges via a written plea agreement.

Violations of 21 U.S.C. §§ 841(a)(1) & (b)(1)(B)(iii) carry a statutory prison sentence

range of five to forty years.

       A pre-sentence investigation report (“PSR”) was prepared by the U.S. Probation

Office. In the PSR, the Probation Office calculated a total offense level of 31 and, based

on a criminal history score of 15 points, a criminal history category of VI. This criminal

history score included two criminal history points, added pursuant to U.S.S.G. § 4A1.1(e),

because the instant offense was committed less than two years after Amos’ release from

custody for several prior felony convictions. The calculated offense level and criminal

history category resulted in a Guidelines range of 188 to 235 months’ imprisonment.

       On May 26, 2004, the District Court sentenced Amos to 188 months’

imprisonment, the minimum sentence permissible under the then-mandatory Federal

Sentencing Guidelines. Amos timely appealed. In light of the Supreme Court’s decision



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in United States v. Booker, 

(2005), this Court vacated Amos’ sentence and

remanded for resentencing under the now-advisory Guidelines. United States v. Amos,

127 Fed. Appx. 83 (3d Cir. 2005) (unpublished). On remand, Amos requested a sentence

below the advisory range, contending that, given the difference in treatment between

crimes involving crack and crimes involving powder cocaine, a sentence within the

advisory range would be unreasonable. Amos also challenged the two criminal history

points assessed pursuant to U.S.S.G. § 4A1.1(e). The District Court rejected Amos’

challenge to the U.S.S.G. § 4A1.1(e) adjustment. After a detailed analysis of the

sentencing factors set forth in 18 U.S.C. § 3553(a), the Court determined that a sentence

below the recommended Guidelines range was appropriate, and sentenced Amos to 140

months’ imprisonment. Amos now appeals from this sentence.




                                            II.

       On appeal, Amos contends that the District Court erroneously refused to withhold

a two-point U.S.S.G. § 4A1.1(e) adjustment from his criminal history score. Amos relies

on the logic of Apprendi v. New Jersey, 

(2000), for the contention that the

facts of his prior conviction must have been proven to a jury beyond a reasonable doubt

before they could be used to enhance his sentence. He acknowledges that the Supreme

Court, in Almendarez-Torres v. United States, 

(1998), specifically

exempted prior convictions from the requirements of Apprendi, but he nonetheless urges



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us to reject this exception, or to narrowly apply it to only the mere fact of a prior

conviction. Specifically, he contends that the facts supporting the two-point U.S.S.G. §

4A1.1(e) adjustment, i.e., the elapsed time between the conviction for the instant offense

and his release from prior custody, were “too far removed from the conclusive

significance of a prior judicial record.” Amos Br. at 15 (quoting Shepard v. United

States, 

, 24 (2005)).

       Amos also contends that his sentence violates “the principle announced in United

States v. Booker. . . .” Amos Br. at 8. We will construe this line of argument as a

challenge to the reasonableness of his sentence.

       Amos’ contentions are wholly without merit. Foremost, neither Apprendi nor

Almendarez-Torres applies to his case. In Apprendi, the Court ruled that “[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 

(emphasis added). Here, however, the sentencing

court did not increase Amos’ statutory maximum penalty, but rather used his prior

conviction as a sentencing fact to calculate a two-point increase to his Guidelines criminal

history score. In United States v. Cooper, 

(3d Cir. 2006), we held that such

sentencing facts need only be determined by a preponderance of the evidence. 

(“[T]he standard of proof under the guidelines for sentencing facts continues to be




                                              4
preponderance of the evidence.”).1 Amos does not argue that this standard was not met.

Accordingly, there was no error.

       Amos’ contention that his sentence was unreasonable is also without merit. In

Cooper we stated that there are two components to our reasonableness review: (1) an

examination of the court’s treatment of the relevant sentencing factors, and (2) a review

of how the court applied the relevant factors to the facts of the case at 

. Although a sentencing court does not need to make explicit findings on each

factor, it must be clear from the record that “it took the factors into account in

sentencing.” 

The record must indicate that the sentencing court gave them

meaningful consideration and that it addressed all arguments raised by the parties that rest

upon “a ground of recognized legal merit (provided they have a factual basis).” 

States v. Cunningham, 

, 679 (7th Cir. 2005)).

       Here, at the resentencing hearing the District Court engaged in a lengthy

discussion of the 18 U.S.C. § 3553(a) sentencing factors. App. at 36-44. Because of the

Court’s great thoroughness we need not recount that discussion here. The District Court




   1
    In United States v. Cooper, 

(3d Cir. 2006), we declined to address the
question of whether the same standard of proof would apply to a finding of a separate
offense. 

n.7. Although we answered this question in the affirmative in United
States v. Grier, 

(3d Cir. 2006), that decision was recently vacated, and no
longer has any precedential value. See United States v. Grier, --- F.3d ----, 

(3rd Cir. Jul 19, 2006). This case, however, does not involve fact-finding
relating to a separate offense; therefore, the teachings of Cooper establish the appropriate
burden of proof as preponderance of the evidence. See 

.

                                              5
examined each factor in turn, and explained how the sentence would address that factor’s

purpose. Aside from Amos’ attack on the U.S.S.G. § 4A1.1(e) adjustment, which we

have determined to be without merit, the District Court more than adequately addressed

each of Amos’ contentions in its discussion. In parting, it is worth noting that even

removing the U.S.S.G. § 4A1.1(e) adjustment from consideration, Amos’ sentence of 140

months was well below both the statutory maximum penalty of forty years, and the lower

Guidelines range of 168 to 210 months. We are satisfied that Amos’ sentence was not

unreasonable.

                                            III.

       We have considered all contentions presented by the parties and conclude that no

further discussion is necessary. We will affirm the judgment of the District Court.




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