Third Circuit disposition — 062572np-pdf

Honorable William H. Stafford, Jr., Senior District Judge for the United States*
District Court for the Northern District of Florida, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 06-2572
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UNITED STATES OF AMERICA
vs.
ANTONIO STITT,
Appellant
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 03-cr-00259-1)
District Judge: The Honorable Alan N. Bloch
___________
Submitted Under Third Circuit LAR 34.1(a)
May 21, 2008
BEFORE: SMITH and NYGAARD, Circuit Judges,
and STAFFORD, District Judge.*
(Filed: May 30, 2008)

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OPINION OF THE COURT
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NYGAARD, Circuit Judge.
This is an appeal from a resentence imposed after a Booker remand. The
conviction in this case arose from a guilty plea on drug charges. Stitt filed a timely
appeal.
Because we write exclusively for the parties, who are familiar with the facts and
proceedings below, we will not revisit them here. Pursuant to Anders v. California, 386
U.S. 738 (1967), Stitt’s appointed counsel has examined the record, concluded that there
are no non-frivolous issues for review, and requested permission to withdraw.
This request was accompanied by a brief identifying one issue as arguably
possessing merit: whether prior convictions, not included in the Indictment nor admitted
to by the defendant, can lawfully be considered in determining his sentence. Stitt argued
that the use of his prior convictions to determine his sentence violated his Sixth
Amendment and due process rights. He asserted that Almendarez-Torres v. United States,
523 U.S. 224 (1998), which permits consideration of his prior convictions, has been “all
but overruled” and should not be applied in this case.
Stitt’s counsel, however, concedes that this Supreme Court precedent remains
binding in this instance. Additionally, counsel acknowledges that , even post-Booker, the

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District Court does not have authority to impose a sentence lower than the statutory
minimum, which in this case was twenty years.
Accordingly, we find that there are no non-frivolous arguments raised in this
appeal. We will grant counsel's motion to withdraw and we will affirm the judgment of
the District Court.

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