CLD-045 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 24-2540 ___________
UNITED STATES OF AMERICA
v.
ROBERT EARL MARTIN, Appellant ____________________________________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Action No. 2:98-cr-00178-001) District Judge: Mark A. Kearney ____________________________________
Submitted on Appellee’s Motion for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 December 5, 2024
Before: KRAUSE, PHIPPS, and SCIRICA, Circuit Judges
(Opinion filed: December 13, 2024) _________
OPINION * _________
PER CURIAM
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Robert Martin appeals pro se from the District Court’s order denying his fourth
motion for compassionate release. The United States moved to summarily affirm the
District Court’s judgment and to be excused from filing a brief. See 3d Cir. L.A.R. 27.4.
We grant the motion.
In 1998, a jury found Martin guilty of armed bank robbery, see 18 U.S.C. § 2113,
and using and carrying a firearm during a crime of violence, see 18 U.S.C. § 924(c). At
sentencing, in August 2001, the District Court found by a preponderance of the evidence
that Martin had two prior serious violent felony convictions. The District Court
sentenced Martin to life in prison pursuant to the “three-strikes” sentencing law. 1 We
affirmed the judgment of conviction and sentence. United States v. Martin, 46 F. App’x
119, 123 (3d Cir. 2002).
In July 2024, Martin moved for compassionate release or a reduction in sentence
under 18 U.S.C. § 3582(c)(1)(A). He based his motion on a sentencing policy allowing
consideration of relief from an “unusually long sentence” that, due to a change in the law,
would be grossly different if imposed today. See U.S.S.G. § 1B1.13(b)(6). He argued
that because his prior convictions were not charged in the indictment or submitted to the
1 See 18 U.S.C. § 3559(c)(1) (mandating a life sentence when a defendant convicted of a serious violent felony (A) has been convicted on “separate prior occasions” of (i) at least two serious violent felonies or (ii) at least one serious violent felony and at least one serious drug offense; and (B) “each serious violent felony or serious drug offense used as a basis for sentencing under this subsection, other than the first, was committed after the defendant's conviction of the preceding serious violent felony or serious drug offense”).
2 jury and proven beyond a reasonable doubt, applying the “three-strikes” provision was
unconstitutional after Erlinger v. United States, 602 U.S. 821 (2024). The District Court
denied Martin’s motion. Martin appealed. The United States timely moved for summary
action, and Martin opposed the motion.
We have appellate jurisdiction under 28 U.S.C. § 1291. We may summarily
affirm the District Court’s judgment if the appeal presents no substantial question. See
3d Cir. I.O.P. 10.6; Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).
We review the District Court’s denial of the compassionate release motion for abuse of
discretion. See United States v. Pawlowski, 967 F.3d 327, 330 (3d Cir. 2020). We
review legal questions de novo. See United States v. Bansal, 663 F.3d 634, 658 (3d Cir.
2011).
Under the compassionate release statute, a district court “may reduce the term of
imprisonment” and “impose a term of probation or supervised release” if it finds that
“extraordinary and compelling reasons warrant such a reduction” and considers
applicable statutory sentencing factors. 18 U.S.C. § 3582(c)(1)(A)(i). The United States
Sentencing Commission determines what qualifies as an “extraordinary and compelling
reason.” 28 U.S.C. § 994(t). Recently, the Sentencing Commission amended its
sentencing guidelines and policy statements. See 88 Fed. Reg. 28,254. One of these
policy amendments provides:
3 If a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant's individualized circumstances.
Id.; U.S.S.G. § 1B1.13(b)(6). 2
The “three-strikes” provision under which the District Court enhanced Martin’s
sentence, § 3559(c)(1), has not changed since Martin’s sentence. Instead, Martin argues
that Erlinger v. United States changed the law, so his sentence is now unconstitutional
and would be different had he been sentenced today. In Erlinger, the U.S. Supreme Court
held that, for a sentence enhancement under 18 U.S.C. § 924(e)(1), only a jury may
determine whether a defendant’s prior criminal acts were committed on different
occasions. 602 U.S. at 834-35. As Martin points out, the U.S. Supreme Court
re-emphasized that “[v]irtually any fact that increases the prescribed range of penalties to
which a criminal defendant is exposed must be resolved by a unanimous jury beyond a
reasonable doubt (or freely admitted in a guilty plea).” Id. at 834 (cleaned up) (quoting
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). The Court also re-stated the
2 We recently held that this amendment was invalid as applied to the First Step Act’s change to 18 U.S.C. § 924(c). See United States v. Rutherford, 120 F.4th 360 (3d Cir. 2024).
4 exception to this general rule, which is that judges may find “the fact of a prior
conviction.” Id. at 838 (quoting Alleyne v. United States, 570 U.S. 99, 111 n.1 (2013));
see also Almendarez-Torres v. United States, 523 U.S. 224 (1998). Under this exception,
a judge can find what crime the defendant was convicted of, and the elements of that
crime, but nothing more. Erlinger, 602 U.S. at 838. In Erlinger, the District Court’s
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CLD-045 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 24-2540 ___________
UNITED STATES OF AMERICA
v.
ROBERT EARL MARTIN, Appellant ____________________________________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Action No. 2:98-cr-00178-001) District Judge: Mark A. Kearney ____________________________________
Submitted on Appellee’s Motion for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 December 5, 2024
Before: KRAUSE, PHIPPS, and SCIRICA, Circuit Judges
(Opinion filed: December 13, 2024) _________
OPINION * _________
PER CURIAM
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Robert Martin appeals pro se from the District Court’s order denying his fourth
motion for compassionate release. The United States moved to summarily affirm the
District Court’s judgment and to be excused from filing a brief. See 3d Cir. L.A.R. 27.4.
We grant the motion.
In 1998, a jury found Martin guilty of armed bank robbery, see 18 U.S.C. § 2113,
and using and carrying a firearm during a crime of violence, see 18 U.S.C. § 924(c). At
sentencing, in August 2001, the District Court found by a preponderance of the evidence
that Martin had two prior serious violent felony convictions. The District Court
sentenced Martin to life in prison pursuant to the “three-strikes” sentencing law. 1 We
affirmed the judgment of conviction and sentence. United States v. Martin, 46 F. App’x
119, 123 (3d Cir. 2002).
In July 2024, Martin moved for compassionate release or a reduction in sentence
under 18 U.S.C. § 3582(c)(1)(A). He based his motion on a sentencing policy allowing
consideration of relief from an “unusually long sentence” that, due to a change in the law,
would be grossly different if imposed today. See U.S.S.G. § 1B1.13(b)(6). He argued
that because his prior convictions were not charged in the indictment or submitted to the
1 See 18 U.S.C. § 3559(c)(1) (mandating a life sentence when a defendant convicted of a serious violent felony (A) has been convicted on “separate prior occasions” of (i) at least two serious violent felonies or (ii) at least one serious violent felony and at least one serious drug offense; and (B) “each serious violent felony or serious drug offense used as a basis for sentencing under this subsection, other than the first, was committed after the defendant's conviction of the preceding serious violent felony or serious drug offense”).
2 jury and proven beyond a reasonable doubt, applying the “three-strikes” provision was
unconstitutional after Erlinger v. United States, 602 U.S. 821 (2024). The District Court
denied Martin’s motion. Martin appealed. The United States timely moved for summary
action, and Martin opposed the motion.
We have appellate jurisdiction under 28 U.S.C. § 1291. We may summarily
affirm the District Court’s judgment if the appeal presents no substantial question. See
3d Cir. I.O.P. 10.6; Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).
We review the District Court’s denial of the compassionate release motion for abuse of
discretion. See United States v. Pawlowski, 967 F.3d 327, 330 (3d Cir. 2020). We
review legal questions de novo. See United States v. Bansal, 663 F.3d 634, 658 (3d Cir.
2011).
Under the compassionate release statute, a district court “may reduce the term of
imprisonment” and “impose a term of probation or supervised release” if it finds that
“extraordinary and compelling reasons warrant such a reduction” and considers
applicable statutory sentencing factors. 18 U.S.C. § 3582(c)(1)(A)(i). The United States
Sentencing Commission determines what qualifies as an “extraordinary and compelling
reason.” 28 U.S.C. § 994(t). Recently, the Sentencing Commission amended its
sentencing guidelines and policy statements. See 88 Fed. Reg. 28,254. One of these
policy amendments provides:
3 If a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant's individualized circumstances.
Id.; U.S.S.G. § 1B1.13(b)(6). 2
The “three-strikes” provision under which the District Court enhanced Martin’s
sentence, § 3559(c)(1), has not changed since Martin’s sentence. Instead, Martin argues
that Erlinger v. United States changed the law, so his sentence is now unconstitutional
and would be different had he been sentenced today. In Erlinger, the U.S. Supreme Court
held that, for a sentence enhancement under 18 U.S.C. § 924(e)(1), only a jury may
determine whether a defendant’s prior criminal acts were committed on different
occasions. 602 U.S. at 834-35. As Martin points out, the U.S. Supreme Court
re-emphasized that “[v]irtually any fact that increases the prescribed range of penalties to
which a criminal defendant is exposed must be resolved by a unanimous jury beyond a
reasonable doubt (or freely admitted in a guilty plea).” Id. at 834 (cleaned up) (quoting
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). The Court also re-stated the
2 We recently held that this amendment was invalid as applied to the First Step Act’s change to 18 U.S.C. § 924(c). See United States v. Rutherford, 120 F.4th 360 (3d Cir. 2024).
4 exception to this general rule, which is that judges may find “the fact of a prior
conviction.” Id. at 838 (quoting Alleyne v. United States, 570 U.S. 99, 111 n.1 (2013));
see also Almendarez-Torres v. United States, 523 U.S. 224 (1998). Under this exception,
a judge can find what crime the defendant was convicted of, and the elements of that
crime, but nothing more. Erlinger, 602 U.S. at 838. In Erlinger, the District Court’s
determination that the defendant’s offenses occurred on separate occasions exceeded the
scope of this exception. See id. at 838-39. The Court expressly limited its holding to
§ 924(e)(1)’s occasions inquiry. See id. at 835 (“Erlinger was entitled to have a jury
resolve [the Armed Career Criminal Act’s] occasions inquiry unanimously and beyond a
reasonable doubt, [but] we decide no more than that.”).
Martin argues that Erlinger “changed the application of Apprendi and
[A]lmendarez-Torres.” We disagree. Erlinger merely applied Apprendi to the sentencing
scheme in § 924(e)(1). See Erlinger, 602 U.S. at 837-39; see also id. at 835 (“Really, this
case is as nearly on all fours with Apprendi and Alleyne as any we might imagine.”). It
did not change the law.
We have already applied Apprendi to the “three-strikes” provision in § 3559(c)
and concluded that it is permissible for the judge to find that the defendant had the
relevant prior convictions. See United States v. Weaver, 267 F.3d 231, 250-51 (3d Cir.
2001). Martin submits for the first time on appeal that a jury should have considered the
other findings required under § 3559(c)(1), i.e., that he was convicted “on separate prior
5 occasions,” and each crime used as a basis for sentencing, other than the first, was
committed after his conviction of the preceding serious violent felony or serious drug
offense. But Martin’s argument is not based on a change in the law, but rather is an
application of Apprendi that he could have raised on direct appeal. See Martin,
46 F. App’x at 123; Apprendi, 530 U.S. at 490. 3 The District Court did not abuse its
discretion by denying Martin’s compassionate release motion.
Accordingly, we will affirm the District Court’s judgment.
3 Thus, we need not address the validity of U.S.S.G. § 1B1.13(b)(6) as applied in this instance.