United States of America v. Ricardo Allen Murray

* The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge for the Sixth
Circuit, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-1439
UNITED STATES OF AMERICA
v.
RICARDO ALLEN MURRAY,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 05-cr-00455)
District Judge: Honorable Juan R. Sanchez
Submitted pursuant to Third Circuit L.A.R. 34.1(a)
March 13, 2007
Before: FUENTES, VAN ANTWERPEN, and SILER,* Circuit Judges.
(Filed: March 30, 2007)
OPINION OF THE COURT
SILER, Circuit Judge.

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Defendant Ricardo Allen Murray appeals his 51-month sentence for reentry by an
alien, in violation of 8 U.S.C. §§ 1326 (a), (b)(2). He contends that the District Court
effectively reinstated a pre-Booker departure requirement because it did not recognize the
advisory nature of the United States Sentencing Guidelines. He further argues that the
sentence violated his Fifth and Sixth Amendment rights because the District Court
improperly increased his sentence based upon a prior conviction that was neither charged
in the indictment nor admitted to in his guilty plea. We affirm.
I. Treatment of the Sentencing Guidelines
Murray argues that the District Court violated United States v. Booker, 543 U.S.
220 (2005), and United States v. Cooper, 437 F.3d 324 (3d Cir. 2006), by reading the
Guidelines as mandatory instead of giving them the appropriate advisory weight.
Specifically, Murray points to the District Court’s statements that “[t]his is not an unusual
case justifying a sentence below the guidelines” and that it did not “see anything unusual
that merits any sentence outside of the guidelines.” As a result, in Murray’s view, the
District Court failed to appropriately consider his request for a below-Guidelines sentence
based upon the grounds of family circumstances and fast-track disparity.
The District Court gave appropriate weight to the Guidelines, 18 U.S.C. § 3553
factors, and other relevant sentencing considerations. It expressly stated that it
“recognizes that the United States Sentencing Guidelines are no longer mandatory, but
are advisory pursuant to the Supreme Court’s holding in the United States versus Booker
decision.” Additionally, the District Court properly followed our Cooper opinion,

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although it imposed Murray’s sentence pre-Cooper. The District Court first calculated
the applicable sentencing Guidelines range based upon the presentence investigation
report and then considered the § 3553 (a) factors. Murray’s particular circumstances were
weighed by the District Court in its sentence.
Further, while the District Court did consider Murray’s fast-track argument, our
recent decision in United States v. Antonio Vargas, 477 F.3d 94 ( 3d Cir. 2007), renders
this argument without merit. In Vargas, we considered a defendant’s argument that he
faced an unwarranted sentencing disparity in violation of § 3553(a)(6) because he was
subjected to a higher Guidelines range than defendants in fast-track districts. We found
that any disparity created by the fast-track programs is warranted and therefore comports
with § 3553(a)(6). Furthermore, as Vargas notes, our decision in United States v.
Charles, 467 F.3d 828 (3d Cir. 2006), “placed the burden on the defendant to demonstrate
similarity by showing that other defendants’ ‘circumstances exactly paralleled’ his.”
Vargas, 477 F.3d at 100. The District Court in this case noted that Murray did not
demonstrate this. See App. at 127 (“I do not find, however, that defendant is similarly
situated to those in many of those border states.”) We believe the District Court was
correct that, absent this showing, Murray’s fast-track disparity argument fails.
II. Prior Convictions
Murray contends that Apprendi v. New Jersey, 530 U.S. 466 (2000), requires that
prior convictions that enhance the statutory penalty should be charged in the indictment
and either proven to a jury beyond a reasonable doubt or admitted as an element of the

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offense. Because this did not occur, Murray argues that the government violated his Fifth
and Sixth Amendment rights.
There is no dispute from Murray that Almendarez-Torres v. United States, 523
U.S. 224 (1998), controls the Fifth Amendment portion of the claim. While Murray does
not concede that Almendarez-Torres controls his Sixth Amendment claim, our precedent
holds that it does. In United States v. Coleman, 451 F.3d 154 (3d Cir. 2006), we held that
the government’s failure to prove prior convictions to a jury beyond a reasonable doubt
did not violate a defendant’s Sixth Amendment rights, and we followed Almendarez-
Torres in reaching that decision. Id. at 159. Thus, Murray’s claims fail.
AFFIRMED.

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