United States v. Bell

Second Circuit

United States v. Bell

115 F. App'x 510

CourtCourt of Appeals for the Second Circuit

DecidedDecember 17, 2004

DocketNo. 04-0666-CR

StatusPublished

This text of 115 F. App'x 510 (United States v. Bell) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Bell, 115 F. App'x 510 (2d Cir. 2004).

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[511]*511 SUMMARY ORDER

Defendant-Appellant Willis Bell, Jr., (“Bell”) appeals from a final judgment of conviction entered on January 23, 2004 in the United States District Court for the Eastern District of New York (Allyne R. Ross, Judge). Pursuant to a plea agreement, Bell pleaded guilty to conspiracy to possess with intent to distribute 500 grams or more of a substance containing cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. He was sentenced to 74 months’ imprisonment, a five-year term of supervised release, and a mandatory special assessment of $100.

Because we can easily dispose of this case on the merits, we decline to reach the applicability of the appeals waiver provisions of Bell’s plea agreement.¹ The only claim Bell raises on appeal is a Sixth Amendment challenge to his sentence under Blakely v. Washington, — U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), on the ground that the firearm enhancement made to his sentence was based on facts found by the District Court by a preponderance of the evidence. In Mincey, we held that Blakely has no application to the Guidelines “[ujnless and until the Supreme Court rules otherwise.” United States v. Mincey, 380 F.3d 102, 106 (2d Cir.2004). Accordingly, Bell’s challenge is rejected.

For the reasons set forth above, the judgment of the District Court is hereby AFFIRMED.

The mandate in this case will be held pending the Supreme Court’s decision in United States v. Booker, — U.S. -, 125 S.Ct. 11, 159 L.Ed.2d 838 (cert. granted Aug. 2, 2004) (mem.), and United States v. Fanfan, — U.S.-, 125 S.Ct. 12, 159 L.Ed.2d 838 (cert. granted Aug. 2, 2004) (mem.). Should any party believe there is a special need for the District Court to exercise jurisdiction prior to the Supreme Court’s decision, it may file a motion seeking issuance of the mandate in whole or in part. Although any petition for rehearing should be filed in the normal course pursuant to Rule 40 of the Federal Rules of Appellate Procedure, the court will not reconsider those portions of its opinion that address the defendant’s sentence until after the Supreme Court’s decision in Booker and Fanfan. In that regard, the parties will have 14 days following the Supreme Court’s decision to file supplemental petitions for rehearing in light of Booker and Fanfan.

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[511]*511 SUMMARY ORDER

Defendant-Appellant Willis Bell, Jr., (“Bell”) appeals from a final judgment of conviction entered on January 23, 2004 in the United States District Court for the Eastern District of New York (Allyne R. Ross, Judge). Pursuant to a plea agreement, Bell pleaded guilty to conspiracy to possess with intent to distribute 500 grams or more of a substance containing cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. He was sentenced to 74 months’ imprisonment, a five-year term of supervised release, and a mandatory special assessment of $100.

Because we can easily dispose of this case on the merits, we decline to reach the applicability of the appeals waiver provisions of Bell’s plea agreement.¹ The only claim Bell raises on appeal is a Sixth Amendment challenge to his sentence under Blakely v. Washington, — U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), on the ground that the firearm enhancement made to his sentence was based on facts found by the District Court by a preponderance of the evidence. In Mincey, we held that Blakely has no application to the Guidelines “[ujnless and until the Supreme Court rules otherwise.” United States v. Mincey, 380 F.3d 102, 106 (2d Cir.2004). Accordingly, Bell’s challenge is rejected.

For the reasons set forth above, the judgment of the District Court is hereby AFFIRMED.

The mandate in this case will be held pending the Supreme Court’s decision in United States v. Booker, — U.S. -, 125 S.Ct. 11, 159 L.Ed.2d 838 (cert. granted Aug. 2, 2004) (mem.), and United States v. Fanfan, — U.S.-, 125 S.Ct. 12, 159 L.Ed.2d 838 (cert. granted Aug. 2, 2004) (mem.). Should any party believe there is a special need for the District Court to exercise jurisdiction prior to the Supreme Court’s decision, it may file a motion seeking issuance of the mandate in whole or in part. Although any petition for rehearing should be filed in the normal course pursuant to Rule 40 of the Federal Rules of Appellate Procedure, the court will not reconsider those portions of its opinion that address the defendant’s sentence until after the Supreme Court’s decision in Booker and Fanfan. In that regard, the parties will have 14 days following the Supreme Court’s decision to file supplemental petitions for rehearing in light of Booker and Fanfan.

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115 F. App'x 510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bell-ca2-2004.

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