Filed: Jun. 16, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 6-16-2006 USA v. Newman Precedential or Non-Precedential: Non-Precedential Docket No. 05-4264 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "USA v. Newman" (2006). 2006 Decisions. Paper 886. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/886 This decision is brought to you for free and open access by the Opinions of the United States
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 6-16-2006 USA v. Newman Precedential or Non-Precedential: Non-Precedential Docket No. 05-4264 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "USA v. Newman" (2006). 2006 Decisions. Paper 886. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/886 This decision is brought to you for free and open access by the Opinions of the United States ..
More
Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
6-16-2006
USA v. Newman
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4264
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"USA v. Newman" (2006). 2006 Decisions. Paper 886.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/886
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 05-4264
___________
UNITED STATES OF AMERICA
v.
PRAYLOR NEWMAN,
Appellant
___________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 02-cr-00539-1)
District Judge: Honorable J. Curtis Joyner
___________
Submitted Under Third Circuit LAR 34.1(a)
June 15, 2006
Before: FISHER, CHAGARES and REAVLEY,* Circuit Judges.
(Filed June 16, 2006)
___________
OPINION
___________
*
The Honorable Thomas M. Reavley, United States Circuit Judge for the Fifth
Circuit, sitting by designation.
REAVLEY, Circuit Judge.
Praylor Newman appeals his sentence. He argues that: (1) his sentence was
unreasonable under United States v. Booker, 543 U.S. 220,
125 S. Ct. 738,
160 L. Ed. 2d
621 (2005) because the District Court did not sufficiently articulate its consideration of
the sentencing factors set forth in 18 U.S.C. § 3553(a); (2) the District Court erred in
using his three prior burglary and three prior drug convictions to enhance his sentence
because those convictions had not been proven to a jury beyond a reasonable doubt; and
(3) the government lacked the sufficient proof required under Shepard v. United States,
544 U.S. 13,
125 S. Ct. 1254,
161 L. Ed. 2d 205 (2005) to establish that his pleas to three
burglaries under Pennsylvania’s non-generic burglary statute brought him within the
ambit of the Armed Career Criminal Act (ACCA). For the reasons provided below, we
will affirm. We presume the parties’ familiarity with the facts and procedural history,
which we include only as necessary to explain our decision.
I.
Newman’s advisory sentencing guideline range was determined to be 235 to 293
months. The District Court sentenced Newman to 293 months. Newman argues that his
293 month sentence was unreasonable under Booker because the District Court did not
sufficiently articulate its consideration of the sentencing factors set forth in 18 U.S.C.
§ 3553(a). We have jurisdiction to review sentences for reasonableness under 18 U.S.C.
§ 3742(a)(1). See United States v. Cooper, 437 F.3d 324, 327 (3d Cir. 2006). When
2
reviewing a district court's sentence, we must satisfy ourselves that it considered the
relevant sentencing factors set forth in 18 U.S.C. § 3553(a). Id. at 329. While a court is
not required to discuss or make findings as to each of the § 3553(a) factors, the record
must demonstrate that it gave “meaningful consideration” to the factors and took them
into account in sentencing.
Id.
In this case, the relevant § 3553(a) factors are:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(2) the need for the sentence imposed–
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant;
and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established
for . . . the applicable category of offense committed by the
applicable category of defendant as set forth in the guidelines.
...
18 U.S.C. § 3553(a); see Cooper, 437 F.3d at 329. Where the court imposes a sentence
within the applicable sentencing guidelines range, that sentence is not considered
reasonable per se, but such a sentence is more likely to be reasonable than a sentence
outside the sentencing guidelines range.
Cooper, 437 F.3d at 331.
3
Newman does not explain what factors the District Court failed to consider.
Instead, he makes the same argument he made to the District Court at his sentencing –
that the majority of his “serious” prior convictions occurred before the age of twenty and
there “is substantial empirical evidence that recidivism decreases significantly with the
progression and maturation of age.” The District Court considered this argument in
assessing Newman’s sentence. We are satisfied that the record as a whole demonstrates
the District Court's meaningful consideration of both the § 3553(a) factors and the issues
raised by Newman’s counsel.
II.
Newman next argues that the District Court erred in using his three prior burglary
and three prior drug convictions to enhance his sentence because those convictions had
not been proven to a jury beyond a reasonable doubt. In Almendarez-Torres v. United
States, 523 U.S. 224, 243,
118 S. Ct. 1219, 1230-31,
140 L. Ed. 2d 350 (1998), the
Supreme Court concluded that prior convictions which serve to increase the statutory
maximum for an offense are not elements of the offense, and therefore, may be
established by the sentencing judge by a preponderance of the evidence. This Court has
previously held that Almendarez-Torres remains good law despite any tensions between
that decision and the Supreme Court's later pronouncements in Shepard, Booker, and
Blakely v. Washington,
542 U.S. 296,
124 S. Ct. 2531,
159 L. Ed. 2d 403 (2004). United
States v. Ordaz,
398 F.3d 236, 240-41 (3d Cir. 2005). Thus, Newman’s argument is
4
foreclosed by circuit precedent and has no merit unless and until the Supreme Court
overrules Almendarez-Torres.
III.
Newman finally argues that the government lacked the sufficient proof required
under Shepard to establish that his pleas to three burglaries under Pennsylvania’s non-
generic burglary statute qualified him under the ACCA. Newman’s argument is
unavailing because he stipulated on the record at his first sentencing that his three prior
burglaries were of buildings and qualified him as an armed career criminal.
IV.
For the foregoing reasons, we will AFFIRM the District Court’s judgment of
sentence.
5
