Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
6-16-2005
USA v. Taylor
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-4602
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"USA v. Taylor" (2005). 2005 Decisions. Paper 1005.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 03-4602
UNITED STATES OF AMERICA
v.
AARON TAYLOR,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Crim. No. 02-cr-00066-1)
District Court: Hon. R. Barclay Surrick
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 18, 2004
Before: SCIRICA, Chief Judge,
and McKEE and CHERTOFF,* Circuit Judges.
OPINION
McKEE, Circuit Judge.
Aaron Taylor appeals the judgment of conviction and sentence that was entered
following his conviction for possessing cocaine with the intent to distribute (21 U.S.C. §
*
This case was originally submitted before the three-judge panel of Scirica, Chief
Judge, McKee and Chertoff, Circuit Judges. However, Judge Chertoff subsequently
resigned from the court before this opinion was filed. Because the remaining two judges
agreed on the opinion and disposition of the case, it was not necessary to assign a third
judge. Liner v. Phelps, 731 F.2d 1201 (5th Cir.1984); Murray v. Nat'l Broadcasting Co.,
35 F.3d 45 (2nd Cir.1994). The decision is therefore filed by a quorum of the panel. 28
U.S.C. §§ 46(d).
841 (a)(1)), and being a felon in possession of a firearm (18 U.S.C. § 922(g)). He argues
that his sentence should be vacated in light of the Supreme Court’s recent decision in U.S.
v. Booker, 125 S. Ct. 738 (2005). He also argues that 18 U.S.C. § 922(g) is
unconstitutional because it does not require a sufficient nexus to interstate or foreign
commerce.2 For the reasons that follow, we will remand this case to the district court for
re-sentencing.
I.
Because we write primarily for the parties, it is not necessary to recite the facts of
this case in detail. In Booker, the Supreme Court declared the U.S. Sentencing
Guidelines to be “effectively advisory” and no longer binding upon sentencing courts.
Booker, 125 S. Ct. at 757. Thereafter, in U.S. v Davis, 407 F.3d 162 (3d Cir. 2005), we
explained:
Because the sentencing calculus was governed by a
Guidelines framework erroneously believed to be mandatory,
the outcome of each sentencing hearing conducted under this
framework was necessarily affected. Although plain error
jurisprudence generally places the burden on an appellant to
demonstrate specific prejudice flowing from the District
Court’s error, in this context—where mandatory sentencing
was governed by an erroneous scheme—prejudice can be
presumed. . . . Accordingly, defendants sentenced under the
previously mandatory regime whose sentences are being
challenged on direct appeal may be able to demonstrate plain
error and prejudice. We will remand such cases for
resentencing.
2
Taylor concedes that this claim is only raised to preserve it for subsequent
review. See Appellant’s Br. at 28-29.
407 F.3d at 165. Our resolution of Taylor’s challenge to the application of the mandatory
regime of the Guidelines is therefore governed by Booker and Davis, and we will remand
for resentencing.3
However, we reject Taylor’s challenge to the constitutionality of 18 U.S.C. §
922(g) on its merits. Taylor candidly concedes that he is presenting a “bare summary of
[this] argument” in case U.S. v Singletary, 268 F.3d 196 (3d Cir. 2001) is overruled, or a
decision of the Supreme Court alters the jurisprudential landscape. Appellant’s Br. At 28-
29. He thus acknowledges that we are clearly governed by Singletary.
18 U.S.C. § 922(g) states, in relevant part:
It shall be unlawful for any person--
(1) who has been convicted in any court of, a crime
punishable by imprisonment for a term exceeding one year; . .
.
to ship or transport in interstate or foreign commerce, or
possess in or affecting commerce, any firearm or ammunition;
or to receive any firearm or ammunition which has been
shipped or transported in interstate or foreign commerce.
18 U.S.C. § 922 (emphasis added). The evidence here established that the gun in
question was manufactured in Brazil, and shipped to Pennsylvania from Maryland. Thus,
it can hardly be disputed that, at some point, it was shipped or transported in both
3
Taylor also argues that the district court violated the rule of Blakely v.
Washington, 124 S. Ct. 2531 (2004) in applying the career offender provision of the
Guidelines. However, inasmuch as we are remanding for resentencing under Booker and
Davis, the district court will have discretion to fashion an appropriate sentence and need
not apply that enhancement. Accordingly, we need not address that challenge to the
operation of mandatory Guidelines that existed before Booker.
interstate and foreign commerce, as it was made in Brazil, imported into Maryland, and
shipped to Pennsylvania. App. 340a, 346a. It is also evident that Taylor received the
firearm at some point, as it was in his possession at the time of his arrest in Pennsylvania.
App. 13a-14a. Obviously, the gun could not have gone from Brazil to Maryland and
Pennsylvania without traveling in interstate and foreign commerce.
III.
In light of the recent decisions by the Supreme Court and this Circuit, we will
vacate the district court’s judgment of sentence and remand for resentencing.