United States of America v. Eric Willis

*The Honorable Thomas M. Reavley, United States Circuit Judge for the Fifth
Circuit, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 05-1902
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UNITED STATES OF AMERICA
v.
ERIC WILLIS,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 04-cr-00314-3)
District Judge: Honorable J. Curtis Joyner
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Submitted Under Third Circuit LAR 34.1(a)
June 16, 2006
Before: FISHER, CHAGARES and REAVLEY, * Circuit Judges.
(Filed: June 30, 2006)
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OPINION OF THE COURT
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FISHER, Circuit Judge.
On March 16, 2005, Eric Willis was sentenced by the District Court to 157
months’ imprisonment after pleading guilty to charges brought under 18 U.S.C. §§ 924
and 1951, stemming from his 2003 armed robbery of a U-Haul store in Philadelphia. At
Willis’ sentencing hearing, the District Court notified him of his right to appeal, and
Willis informed the District Court orally that he wanted to do so. That appeal is now
before us. As we write solely for the parties, we will set forth only those facts necessary
to our analysis.
Willis’ counsel has filed an Anders brief, see Anders v. California, 386 U.S. 738
(1967), moving to withdraw, and informing us that a diligent search of the record has
failed to reveal any issues of arguable merit. Willis, having been granted an extension of
time, has filed an informal pro se brief, in which he argues that the District Court
improperly found that he used a shotgun during the robbery, thus raising his mandatory
minimum sentence under 18 U.S.C. § 924(c) from five years’ to ten years’ imprisonment.
While Willis, in the sentencing colloquy, explicitly denied having personally used a
shotgun during the robbery, he did not dispute that one of his co-conspirators did, and
defense counsel did not dispute the applicability of the ten-year mandatory minimum.
We have carefully reviewed the record, and will affirm the sentence. Willis
pleaded guilty to violating 18 U.S.C. § 924(c); his contention is that the facts he admitted
at sentencing suffice to make out only a violation of § 924(c)(1)(A)(i) (use of a firearm),
and not (c)(1)(B)(i) (use of a short-barreled shotgun). The former provision carries a

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minimum term of five years’ imprisonment, while the latter carries a minimum term of
ten years’ imprisonment. The District Court did not err either in its factfinding or in its
application of Booker.
We review the District Court’s findings of fact for clear error. See, e.g., United
States v. Grier, 449 F.3d 558, 571 (3d Cir. 2006). The transcript makes it clear that the
judge sentenced Willis under section 924(c)(1)(B)(i), not because Willis himself used a
shotgun during the robbery, but because one of his co-conspirators did. Criminal
defendants are liable for the reasonably foreseeable actions of their co-conspirators. See
Pinkerton v. United States, 328 U.S. 640, 647-48 (1946). The Pinkerton doctrine applies
to violations of section 924(c). See, e.g., United States v. Casiano, 113 F.3d 420, 427 (3d
Cir. 1997) (holding, where one conspirator was sentenced under section 924(c) for
another’s use of a gun, that “[a]s long as [a conspirator’s] action was within the purview
of the conspiracy, his co-conspirators are liable for his gun as if they had carried the
firearm themselves.”) (quoting United States v. Gonzalez, 918 F.2d 1129, 1135 (3d
Cir.1990)). Here, it was reasonably foreseeable that one of Willis’ co-conspirators would
use a shotgun, given the nature of the crime and the fact that Willis also carried a firearm
during the robbery. Thus, it was not error for the District Court to impute the use of the
shotgun to Willis.
The factual determination that Willis had carried a shotgun increased Willis’
minimum § 924 sentence, which under that statute must be imposed consecutively to the
predicate § 1951 sentence, from five years to ten years. But neither (c)(1)(A)(i) nor

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1A 2000 Supreme Court decision, Castillo v. United States, 530 U.S. 120 (2000),
had held that under the prior version of § 924(c), determination of the type of gun used
had to be made by a jury. Under the statute as it then existed, the mandatory type-of-gun
sentences were determinate (thirty years for a machine gun as opposed to ten years for a
sawed-off shotgun and five years for a pistol). The Court therefore held that the
distinctions between types of guns defined separate § 924(c) offenses, and that that
determination accordingly must be made by a jury. Congress subsequently amended the
statute so that in its current form it states minimum sentences only and not maximum
sentences.
2As a result, we conclude that it is not necessary to appoint counsel to file a
petition for rehearing in this Court or a petition for writ of certiorari in the United States
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(c)(1)(B)(i) states a maximum term; accordingly, the maximum sentence under either
provision is life imprisonment. See, e.g., United States v. Mack, 229 F.3d 226, 229 (3d
Cir. 2000) (citing Custis v. United States, 511 U.S. 485, 485 (1994)). Accordingly, the
factual determination made by the District Court did not increase the statutory maximum
for the charge to which Willis pleaded guilty; it increased only the statutory minimum.1
Booker’s prohibition on judicial factfinding at sentencing goes only to those facts that
increase the maximum sentence to which the defendant is exposed. United States v.
Grier, 2006, No. 05-1698, U.S. App. LEXIS 13851 at *11-14 (3d Cir. 2006) (applying
United States v. Booker, 543 U.S. 220 (2005)). Facts which increase the statutory
minimum but not the statutory maximum may be found by the sentencing judge without
offending the Fifth or Sixth Amendments. Harris v. United States, 536 U.S. 545, 560
(U.S. 2002).
For the foregoing reasons, we will grant the motion to withdraw, and affirm the
judgment of the District Court.2

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Supreme Court on Willis’ behalf. See Third Circuit Rule 109.2(b).
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