Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
10-13-2005
USA v. Armstrong
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2333
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"USA v. Armstrong" (2005). 2005 Decisions. Paper 414.
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BPS-389 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-2333
________________
UNITED STATES OF AMERICA
v.
MICHAEL ARMSTRONG,
Appellant
____________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Crim. No. 99-cr-00603)
District Judge: Honorable Juan R. Sanchez
_______________________________________
Submitted For Possible Summary Action Under Third Circuit LAR 27.4 And I.O.P. 10.6
And On Appellant’s Motion For A Certificate Of Appealability
Under 28 U.S.C. § 2253(c)(1)
September 29, 2005
Before: RENDELL, FISHER AND VAN ANTWERPEN, CIRCUIT JUDGES
(Filed: October 13, 2005)
_______________________
OPINION
_______________________
PER CURIAM
Appellant Michael Armstrong, a federal prisoner, appeals the order of the United
States District Court for the Eastern District of Pennsylvania denying his motion under
28 U.S.C. § 2255 to vacate his sentence. The parties are familiar with the facts of the
case, and we will not recount them at length. After a jury trial, Armstrong was convicted
of conspiracy to possess with intent to distribute cocaine and cocaine base, possession
with intent to distribute cocaine and cocaine base, and attempted possession and
distribution of cocaine and cocaine base. Armstrong was sentenced to 300 months of
imprisonment. This Court affirmed the conviction and sentence on May 29, 2003.
In August 2004, Armstrong then filed a motion under 28 U.S.C. § 2255 to vacate
his sentence, raising a number of claims of ineffective assistance of counsel. Armstrong
also claimed that his sentence is unconstitutional in light of Blakely v. Washington,
542 U.S. 296 (2004), because his sentence was increased on the basis of judicial fact-
finding using a preponderance of the evidence standard, rather than upon facts found
beyond a reasonable doubt by the jury. In addition, Armstrong asserted that, under
Shepard v. United States, 125 S. Ct. 1254 (2005), his sentence was unlawfully increased
on the basis of a prior conviction not charged in the indictment nor found beyond a
reasonable doubt by the jury.
By memorandum and order entered on March 30, 2005, the District Court denied
the section 2255 motion, concluding that none of Armstrong’s claims warrant relief.
However, noting that Armstrong’s Blakely claim was more appropriately addressed under
United States v. Booker, 125 S. Ct. 738 (2005), which applied the Blakely rule to the
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United States Sentencing Guidelines, the District Court granted a certificate of
appealability as to Armstrong’s Booker and Shepard claims. The District Court denied a
certificate of appealability on Armstrong’s ineffective assistance of counsel claims.
After Armstrong filed his notice of appeal, we decided Lloyd v. United States,
407 F.3d 608 (3d Cir. 2005). We then asked the parties to submit written argument in
support of, or in opposition to, summary affirmance. The parties have filed their
responses. Armstrong has also filed a motion for a certificate of appealability regarding
his claims of ineffective assistance of counsel, which we will construe as a motion to
expand the scope of the certificate of appealability.
We held in Lloyd that the rule announced in Booker is a new rule of criminal
procedure that is not retroactively applicable to cases on collateral review. Lloyd,
407 F.3d at 615-16. Thus, Armstrong is not entitled to relief under Booker. As for his
similar claim regarding the fact of his prior conviction that was used to increase his
sentence, we observe that Armstrong did not raise this claim in District Court until March
2005, months after the one-year period of limitations would have expired. See 28 U.S.C.
§ 2255. Armstrong relies on Shepard, which was decided on March 7, 2005. To the
extent that he contends that his claim involves a right newly-recognized by the Supreme
Court and made retroactively applicable to cases on collateral review, and thus section
2255’s statute of limitations has not expired for this claim, we note that Shepard has not
been made retroactive by the Supreme Court. See Tyler v. Cain, 533 U.S. 656, 663
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(2001). In any event, Armstrong would not be entitled to relief. The Supreme Court in
Blakely and Booker reaffirmed its holding in Apprendi v. New Jersey, 530 U.S. 466, 490
(2000), that other than the fact of a prior conviction, a fact that increases a criminal
penalty beyond the prescribed statutory maximum must be admitted by the defendant or
proved to a jury beyond a reasonable doubt. See Blakely, 124 S. Ct. at 2536; Booker, 125
S. Ct. at 756. Shepard involves what a court may and may not consider in determining
whether a defendant’s prior convictions qualify as predicate offenses for application of
the Armed Career Criminal Act. Shepard’s holding does not apply to Armstrong, and the
rule of Apprendi applies. Because these issues present “no substantial question,” see
3d Cir. LAR 27.4 and I.O.P. 10.6, we will summarily deny relief on these claims.
We have carefully considered Armstrong’s motion to expand the scope of the
certificate of appealability to include his claims of ineffective assistance of counsel. We
conclude that he has failed to make a “substantial showing of the denial of a
constitutional right” on these claims. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell,
537 U.S. 322, 327 (2003). Thus, we will deny the motion.
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