The opinion of the court was delivered by: McLAUGHLIN, Sean J., J.
MEMORANDUM OPINION AND ORDER
This matter is before the Court upon Defendant John Cooley's Motion to Vacate Judgment pursuant to 28 U.S.C. § 2255.
On December 9, 2003, the defendant, John Cooley, was convicted by a jury on charges of conspiracy to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. § 846. On February 25, 2004, this Court determined at sentencing that Cooley (1) had trafficked in, at minimum, over 35 to 40 kilograms of crack cocaine, (2) was the leader and organizer of a criminal activity involving five or more participants, (3) possessed a firearm during the conspiracy, and (4) attempted to obstruct justice. Based in part upon these findings, Cooley's total offense level was increased to 46 and he received a sentence of life imprisonment.
Cooley timely appealed his conviction and sentence to the Third Circuit. Cooley, through counsel, attacked two of this Court's evidentiary rulings, including his contention that, "Appellant's sentence should be vacated and remanded for resentencing in that the district court imposed a sentence based on findings not submitted to the trial jury and not found to be true beyond a reasonable doubt." (Petitioner's 2255 Motion, Ex. A). On June 20, 2005, the Third Circuit affirmed his judgment of conviction but vacated the sentence and remanded for re-sentencing consistent with United States v. Booker, 543 U.S. 220 (2005). The Court held:
At sentencing, the district court found that Cooley trafficked in over 1.5 kilograms of crack cocaine, that he was the leader or organizer of a criminal activity that involved more than 5 criminal participants, that he possessed firearms during the conspiracy and that he attempted to obstruct the administration of justice. Pursuant to the Sentencing Guidelines, the district court sentenced Cooley to life imprisonment-a sentence beyond the maximum for the crime of conviction.
In his appeal, Cooley argues that the district court's sentence violates United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Under Booker, mandatory enhancement of a sentence under the Sentencing Guidelines based on facts found by the court and not a jury, violates the Sixth Amendment. Thus, after Booker, the Sentencing Guidelines are "effectively advisory." Id. at 757. Accordingly, district courts will now consider the applicable advisory Guidelines in addition to the factors set forth in 18 U.S.C. § 3553(a). Id. at 764-65. Booker is applicable to all cases on direct review. Id. at 769.
Cooley did not raise a Sixth Amendment challenge to his sentence in the district court and Booker was decided after he was sentenced. Nonetheless, pursuant to our recent decision in United States v. Davis, 407 F.3d 162 (3d Cir.2005), we will remand for resentencing pursuant to Booker.
United States v. Cooley, 131 Fed. Appx. 881, 883 (3rd Cir. 2005) ("Cooley I").
On October 21, 2005, Cooley was re-sentenced to a term of life imprisonment in accordance with Booker. Cooley filed a second appeal, asserting that "the District Court's determination of facts at sentencing, not found by the jury or admitted by the defendant, and subsequently relied upon to impose a life sentence, violated the Sixth Amendment to the United States Constitution." (Government's Response, Ex. C). The Third Circuit rejected this argument as follows:
Defendant argues that the facts supporting the enhancements should have been submitted to a jury. He alleges that the enhancements increased his penalty beyond the statutory maximum sentence for the crime for which he was convicted. This argument is not persuasive. The "statutory maximum" sentence is "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Booker, 543 U.S. at 228, 125 S.Ct. 738 (quoting Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)) (emphasis in original). In Booker, the Court reaffirmed its holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Booker, 543 U.S. at 244, 125 S.Ct. 738.
In Booker, as we have recognized, the Court held that the "mandatory enhancement of a sentence under the Guidelines, based on facts found by the court alone, violates the Sixth Amendment." United States v. Davis, 407 F.3d 162, 163 (3d Cir.2005) (citing Booker, 543 U.S. at 244, 125 S.Ct. 738). Booker did not hold, however, that the discretionary application of enhancements under the Guidelines violated the Sixth Amendment. Instead, "In the aftermath of Booker, the Federal Sentencing Guidelines once a mandatory regime circumscribing the discretion of district court judges are 'effectively advisory.' " Davis, 407 F.3d at 163 (quoting Booker, 543 U.S. at 245, 125 S.Ct. 738). Under the advisory guidelines system, a reasonable enhancement applied at the District Court's discretion does not exceed the statutory maximum.
The District Court in this case appropriately recognized that the Guidelines are now only advisory and considered that calculation along with the other factors listed in 18 U.S.C. § 3553(a). See Davis, 407 F.3d at 163. Using this approach, the District Court concluded that life imprisonment was the appropriate punishment for the defendant. There was sufficient evidence in the record at sentencing from which the District Court could conclude that these enhancements were appropriate. The defendant's ...