United States of America v. Randall Austin

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-2355
UNITED STATES OF AMERICA
v.
RANDALL AUSTIN,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim. No. 03-cr-00682)
District Judge: The Honorable Petrese B. Tucker
Submitted Under Third Circuit LAR 34.1(a)
May 6, 2008
Before: SCIRICA, Chief Judge, BARRY and HARDIMAN, Circuit Judges
(Opinion Filed: May 28, 2008)
OPINION
BARRY, Circuit Judge
Appellant Randall Austin appeals the District Court’s imposition of a 240-month
term of imprisonment following his conviction for possession of a firearm by a convicted
felon in violation of 18 U.S.C. § 922(g)(1). The District Court imposed the sentence after

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finding that the government had proven by a preponderance of the evidence that the
criteria for application of the Armed Career Criminal (“ACC”) enhancement of 18 U.S.C.
§ 924(e) to Austin had been satisfied. Had the District Court not applied the ACC
enhancement, Austin would have faced a statutory maximum sentence of 120 months in
prison.
Austin raises a single issue on appeal, namely whether the government’s failure to
charge all of the ACC predicate offenses in the indictment and to prove them to a jury
beyond a reasonable doubt violated his Fifth and Sixth Amendment rights. This argument
is clearly foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United
States, 523 U.S. 224 (1998). See United States v. Vargas, 477 F.3d 94, 105 (3d Cir.
2007) (declaring that Almendarez-Torres “continues to bind our decisions”); United
States v. Coleman, 451 F.3d 154, 161 (3d Cir. 2006) (stating that “Almendarez-Torres
remains good law”); United States v. Ordaz, 398 F.3d 236, 241 (3d Cir. 2005) (noting that
“[t]he holding in Almendarez-Torres remains binding law”). We will affirm.

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