United States of America v. Arthur Able

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-1915
UNITED STATES OF AMERICA
v.
ARTHUR ABLE,
Appellant
On Appeal from the District Court
of the Virgin Islands
(D.C. Crim. No. 03-00128)
Honorable Thomas K. Moore, District Judge
Submitted under Third Circuit LAR 34.1(a)
December 16, 2004
BEFORE: SLOVITER, FUENTES and GREENBERG, Circuit Judges
(Filed: February 24, 2005)
OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before this court on an appeal from a judgment of conviction
and sentence entered on March 26, 2004, after appellant Arthur Able’s conviction at a
jury trial and subsequent sentencing on various charges following his illegal reentry into

-- 1 of 3 --

2
the United States. The court sentenced Able to a 12-month custodial term on one count
and to 24-month custodial terms on the remaining counts which it grouped under the
Sentencing Guidelines. Inasmuch as Able’s sentences on all counts were concurrent, the
court effectively sentenced him to a 24-month custodial term which was at the top of his
guideline range of 18 to 24 months. The district court had jurisdiction under 48 U.S.C. §
1612 and we have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
Able does not challenge his conviction on this appeal. Rather, he contends that:
I. [T]he Supreme Court’s decision in Blakely v. Washington, 124 S.Ct.
2531 (June 24, 2004), renders appellant’s sentence unconstitutional where
an offense level enhancement for a prior conviction was applied and
resulted in a longer sentence on the basis of facts that were not submitted to
the jury nor admitted by appellant.
II. [T]he District Court erred in sentencing appellant to 12 months
incarceration on Count I, where [certain counts] were grouped for
sentencing pursuant to U.S.S.G. § 3D1.4.
We recognize that one aspect of Able’s appeal relates to the enhancement of his
sentencing level by the court by reason of his prior conviction, a procedure that is
permissible under United States v. Booker, 543 U.S. , 125 S.Ct. 738 (2005). See
United States v. Ordaz, No. 04-1671, F.3d (3d Cir. Feb. 23, 2005). We also
recognize, however, that the district court clearly treated the Sentencing Guidelines as
mandatory rather than advisory as the court in its statement of reasons for the sentence in
the judgment indicated that “[t]he sentence is within the guideline range, that range does
not exceed 24 months, and the Court finds no reason to depart from the sentence called

-- 2 of 3 --

3
for by application of the guidelines.” In the circumstances, we determine that the
sentencing issues Able raises are best determined by the district court in the first instance.
In view of the aforesaid we do not disturb Able’s conviction but we will vacate the
sentence in the judgment of conviction and sentence entered on March 26, 2004, and will
remand the case for resentencing in accordance with Booker.

-- 3 of 3 --