Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
5-15-2006
USA v. Bey
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2626
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"USA v. Bey" (2006). 2006 Decisions. Paper 1107.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-2626
UNITED STATES OF AMERICA
v.
JEFFREY BEY,
a/k/a JEFFREY GILBERT
a/k/a ABDUR RASHEED BEY,
Jeffrey Bey,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 02-cr-00684)
District Judge: Honorable Marvin Katz
Submitted Under Third Circuit LAR 34.1(a)
April 27, 2006
Before: AMBRO and FUENTES, Circuit Judges, and
IRENAS * , District Judge.
(Filed: May 15, 2006 )
*
Honorable Joseph E. Irenas, Senior District Judge for the
District of New Jersey, sitting by designation.
OPINION OF THE COURT
FUENTES, Circuit Judge.
Jeffrey Bey appeals his ten-year prison sentence on the ground that the District Court
violated his constitutional rights by imposing it based on a prior conviction not charged in
his indictment or proven to a jury beyond a reasonable doubt. For the reasons stated herein,
we deny Bey’s requested relief and accordingly affirm the District Court.
I. Background
Bey pled guilty to a number of charges including: distribution, and possession with
intent to distribute heroin; distribution, and possession with intent to distribute cocaine; and
possession of a firearm by a convicted felon. Bey received a mandatory ten-year sentence
for the drug charges under 21 U.S.C. § 841(b)(1)(B). As to the gun charge, Bey received a
consecutive mandatory sentence of five years under 18 U.S.C. § 922(g)(1). His total prison
sentence was therefore fifteen years.
Bey does not challenge the five-year sentence. He does argue, however, that his
mandatory ten-year drug sentence is unconstitutional because the fact of his prior felony drug
conviction was neither admitted nor charged in his indictment and proven to a jury beyond
a reasonable doubt. See United States v. Booker, 543 U.S. 220 (2005). He supports this
claim by asserting that because this prior conviction was the sine qua non that rendered the
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ten-year sentence mandatory, see 21 U.S.C. § 841(b)(1)(B), it cannot constitutionally be
found by a judge. See id. Bey accordingly has requested that we remand to the District
Court for re-sentencing. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a).
II. Analysis
Because of the quantity of drugs involved–10.62 grams of heroin and 17.27 grams of
crack–Bey was subject to punishment under 21 U.S.C. § 841(b)(1)(B). Pursuant to that
Section, a defendant who has been convicted of a prior felony drug offense and who
distributes, or possesses with the intent to distribute, this sum of drugs “shall be sentenced
to a term of imprisonment which may not be less than ten years and not more than life
imprisonment.” The District Court determined that Bey had such a conviction in the form
of a 1990 New Jersey state court drug possession charge to which he pled guilty. Based on
this finding, the District Court was statutorily required to sentence Bey to at least ten years
in prison for the drug charge.
Bey nonetheless maintains that the District Court’s finding that he had a prior felony
drug conviction was unconstitutional under Booker. Under recent precedent of this Court,
it is clear that Bey’s contention is incorrect. In United States v. Coleman, __ F.3d ___ (3d
Cir. 2006), we addressed this very issue. There, we held that in a scenario where prior
convictions increased the statutory minimum punishment for a crime, the Government need
not charge the convictions in the indictment and prove them to a jury beyond a reasonable
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doubt. See id. In other words, we held that a district court may make the factual
determination that a defendant has a prior conviction without running afoul of the
Constitution under Booker. That is precisely this issue here, and in light of Coleman, it is
clear that we cannot grant Bey his requested relief.
We note in passing that this result squares neatly with the language of Booker, the
holding of which stated that “[a]ny fact (other than a prior conviction) which is necessary to
support a sentence exceeding the maximum authorized by the facts established by a plea of
guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a
reasonable doubt.” 543 U.S. at 244. The fact of a prior conviction is thus specifically
exempted from the Booker requirement that certain facts be either admitted or proven to a
jury. This language further convinces us that Bey cannot succeed in his claim.
III. Conclusion
For the foregoing reasons, we affirm the judgment of the District Court.
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