United States of America v. Desmond Nelson

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-4850
UNITED STATES OF AMERICA
v.
DESMOND NELSON,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 03-cr-00215)
District Judge: Honorable James K. Gardner
Submitted Under Third Circuit LAR 34.1(a)
September 26, 2005
Before: RENDELL, FUENTES, and GARTH, Circuit Judges.
(Filed October 28, 2005 )
OPINION OF THE COURT
RENDELL, Circuit Judge.
Desmond Nelson pled guilty to one count of felon in possession of a firearm and
ammunition, in violation of 18 U.S.C. § 922(g)(1), and was sentenced to 80 months in
prison. As part of his guilty plea, Nelson waived his rights to appeal his sentence except

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under limited circumstances. In this appeal, Nelson challenges the District Court’s
refusal to depart downward based on his contention that his criminal history over-
represented his prior criminal record under section 4A1.3 of the U.S. Sentencing
Guidelines Manual. He also argues that the application of U.S.S.G. § 2K2.1(a)(ii) to
adjust his base offense level for two prior drug or violent felony convictions violated
Blakely v. Washington. 542 U.S. 296 (2004). Although United States v. Booker, 125 S.
Ct. 738 (2005), had not been decided at the time of briefing, we directed Nelson to
comment on the applicability of Booker to his case. He responded by raising a Booker
challenge, arguing that his sentence was improper because the District Court applied the
Sentencing Guidelines on a mandatory, rather than merely advisory, basis, in a letter
dated March 24, 2004 [sic]. We have jurisdiction to review Nelson’s sentence pursuant to
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
The events that form the basis for the underlying conviction occurred in October
2002, when Desmond Nelson was arrested by the police after a domestic argument during
which he had pulled a gun from his waistband. Following up on the report of this
incident, the police stopped the taxi in which Nelson was riding and found no weapon,
but did recover a small amount of marijuana. Later, after obtaining a search warrant, they
located a Ruger .357 magnum revolver in Nelson’s lockbox. This event was the latest in
a string of encounters by Nelson with the criminal justice system dating back to 1996,
when, at age 16, he was adjudicated delinquent based upon attempted first degree robbery

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and assault in the state of Delaware. Between 1996 and 2002, Nelson had been
adjudicated delinquent as a juvenile on three separate occasions for possession of
marijuana and unauthorized use of an automobile. Thereafter, he was arrested three times
for controlled substance offenses, and twice for driving under the influence. He pled
guilty to most of these offenses, which were interspersed with numerous failures to
appear for court hearings.
The District Court had little difficulty determining that Nelson’s criminal history
category–which was Category VI–did not overstate his criminal history or the likelihood
that he would commit further crimes. The District Court noted that the defendant’s
criminal history, as outlined in the Presentence Report, was “representative of an
unbroken chain of criminal conduct by this defendant from the age of 16 on and is, thus,
deserving of the assigned criminal history category.” Tr. of Sentencing Hr’g 36, Dec. 17,
2003.
The appellate waiver provision of Nelson’s plea agreement expressly exempted
challenges to the District Court’s denial of any motion for downward departure based on
a claim that Nelson’s criminal history category over-represented his prior criminal record.
We conclude that this exception is broad enough to include a Booker challenge to the
District Court’s downward departure decision. In denying Nelson’s request for a
downward departure, the “District Court erred by treating the Guidelines as mandatory
rather than advisory.” United States v. Davis, 407 F.3d 162, 164 (3d Cir. 2005) (en banc).

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This would not preclude the sentencing court, however, from revisiting this issue as1
part of re-sentencing on remand.
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Under these circumstances, we presume that the District Court’s error prejudiced the
defendant, id. at 165, and will therefore vacate Nelson’s sentence and remand for re-
sentencing.
However, Nelson waived his rights to challenge the base offense level calculation
except on limited grounds, and his Blakely claim does not fit within the scope of the
challenges preserved. Accordingly, we have no jurisdiction to address this issue on
appeal. See United States v. Lockett, 406 F.3d 207, 214 (3d Cir. 2005).1
Because Nelson’s Booker challenge to the District Court’s ruling on the downward
departure falls within one of the exceptions to the appellate waiver provision of his plea
agreement, we will VACATE his sentence and REMAND for re-sentencing in light of
Booker.

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