United States of America v. Everton Wright

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2595
UNITED STATES OF AMERICA
v.
EVERTON WRIGHT,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Crim. No. 07-cr-00054)
District Judge: The Honorable Joseph E. Irenas
Submitted Under Third Circuit LAR 34.1(a)
June 25, 2008
Before: SLOVITER, BARRY and ROTH, Circuit Judges
(Opinion Filed: July 23, 2008)
OPINION
BARRY, Circuit Judge
Everton Wright appeals from a sentence of 72 months of imprisonment imposed
following his plea of guilty to one count of illegally reentering the United States after

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having been deported, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Wright’s only
contention on appeal is that § 1326(b)(2) is unconstitutional on its face. We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1), and will affirm.
8 U.S.C. § 1326(a) states that any alien deported from the United States who later
reenters while his term of deportation is outstanding shall be fined or imprisoned for no
longer than two years, or both. Section 1326(b)(2) states that those aliens convicted
under sub-section (a) who were deported subsequent to the commission of an aggravated
felony shall be fined or imprisoned for no longer than twenty years, or both. In
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), the Supreme Court held
that the fact of a prior conviction for an aggravated felony under § 1326(b)(2) is a
sentencing factor and not an element of the underlying offense. Accordingly, it need only
be proven to a sentencing judge by a preponderance of the evidence.
The District Court determined by a preponderance of the evidence that Wright had
been deported after having been convicted of an aggravated felony—namely, the
attempted sale of a controlled substance. Wright concedes that Almendarez-Torres
governs this case and, thus, that his challenge to the constitutionality of the illegal reentry
statute is a challenge “this Court must reject.” (Appellant’s Br. at 3). He observes,
however, that “[a]fter the decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), it
now appears that a majority of the Members of the Supreme Court are of the view that the
constitutional question in Almendarez-Torres . . . was incorrectly decided,” (id. at 7), and

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The letter purports to be pursuant to Fed. R. App. P. 28(j) but is not because, for1
starters, no “pertinent and significant” supplemental authorities are even mentioned.
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that this appeal is solely to preserve his constitutional claim in the event Almendarez-
Torres were to be reversed.
Thus, all Wright expects and all he asks is that we summarily reject his claim on
the merits in order to preserve it for further review. The government responds that “[a]t
first blush, it might seem expedient to dispose of this appeal on that basis.” (Appellee’s
Br. at 1). Whatever the number of the blush, it is wholly expedient and eminently
appropriate to dispose of the appeal on the limited basis on which it is presented. We thus
decline the government’s invitation in this and in a companion case to
issue a precedential opinion holding that defendants who unconditionally
plead guilty (1) waive a claim that the District Court should have given
them a jury trial on the fact of prior conviction, (2) waive a Sixth
Amendment challenge to § 1326(b), and (3) lack standing to argue that §
1326(b) violates the jury-trial rights of other defendants who proceed to
trial. Further, this Court should confirm that guilty-pleading defendants
who nevertheless advance such arguments, or who force the Government to
prove their prior convictions at sentencing, cannot complain about the
Government’s refusal to move for a third-level reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1(b).
Letter of June 13, 2008 at 2.1
The judgment of sentence will be affirmed.

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