                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 10-4129
                                     ___________

                           UNITED STATES OF AMERICA

                                           v.

                               STANLEY RODRIGUEZ,
                                               Appellant
                              _______________________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                         D.C. Criminal No. 07-cr-0709-001
                              (Honorable Jan E. Dubois)
                                  ______________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     June 4, 2012

       Before: SCIRICA, GREENAWAY, JR. and NYGAARD, Circuit Judges.

                                 (Filed: July 20, 2012)
                                 _________________

                              OPINION OF THE COURT
                                 _________________

SCIRICA, Circuit Judge.

      Stanley Rodriguez was convicted of possession with intent to distribute cocaine

near a school in violation of 21 U.S.C. § 860(a) and sentenced to 120 months’

imprisonment, with sixteen years’ supervised release. We will affirm the judgment of

conviction but remand for resentencing.
                                             I.

       In September 2007, Philadelphia plainclothes police officers on patrol in an

unmarked car observed Stanley Rodriguez conversing with the driver of a car stopped in

the middle of the street. In plain view, Rodriguez passed a rolled-up bookbag to the

driver, who placed two rectangular objects wrapped in green tape into the bag and

returned it to Rodriguez. One of the officers identified the objects as kilogram packages

of cocaine from their shape and wrapping, and the officers followed Rodriguez. Alerted

by a bystander to the presence of the police, Rodriguez fled on foot, throwing the

bookbag onto the roof of a nearby garage. The officers apprehended Rodriguez, and then

retrieved the bookbag containing the two green-wrapped objects. Laboratory analysis

subsequently determined the packages contained two kilograms of cocaine.

       Rodriguez was subsequently indicted for alleged violations of 21 U.S.C. §§

841(a)(1) & 860(a). Prior to trial, the government informed Rodriguez that several

officers involved in his arrest had been subject to complaints unrelated to his case

investigated by the Philadelphia Police Internal Affairs Division (IAD). The government

subsequently informed Rodriguez that most of the investigations involved Officer

Norman, whose credibility had been undermined in the course of an investigation and

against whom one investigation remained open, but that allegations of improper search

had resulted in a finding of departmental violation against Officers Reynolds and Walker

and remained open against Officers Betts, O’Malley, and McGrory. Rodriguez filed a

motion for in camera review of the internal affairs files concerning the open

investigations, which the government opposed, noting in its brief that it did not intend to

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call Officer Norman. The District Court denied the motion, holding the IAD

investigation into an alleged improper search was neither material nor exculpatory as

required under Brady. United States v. Rodriguez, No. 07-709-01, 2008 WL 4925010

(E.D. Pa. Nov. 17, 2008).

       Rodriguez was subsequently convicted on both counts after a jury trial in which

Officers Betts, O’Malley, and Reynolds testified. He was sentenced to 120 months’

imprisonment with sixteen years’ supervised release for violation of 21 U.S.C. § 860(a).

Rodriguez did not object to the sentence. He timely appealed. 1

                                             II.

                                             A.

       Brady v. Maryland, 373 U.S. 83 (1963), requires prosecutors to disclose material

exculpatory evidence to the defendant to comply with the constitutional guarantee of

procedural due process. Rodriguez alleges the government’s failure to disclose material

from the pending IAD investigations violated Brady. Relatedly, he argues the District

Court abused its discretion when it denied his motion for review in camera. Because a

Brady claim presents questions of law and fact, we review conclusions of law de novo

and findings of fact for clear error. United States v. Bansal, 663 F.3d 634, 670 (3d Cir.

2011). We review the denial of a motion for in camera review for abuse of discretion.

United States v. Bocra, 623 F.2d 281, 286 (3d Cir. 1980). Abuse of discretion occurs

when the district court’s “decision rests upon a clearly erroneous finding of fact, an errant


1
  The District Court exercised jurisdiction under 18 U.S.C. § 3231. We exercise
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
                                             3
conclusion of law or an improper application of law to fact.” Sharp v. Johnson, 669 F.3d

144, 158 n.19 (3d Cir. 2012) (internal quotation marks omitted) (quoting Oddi v. Ford

Motor Co., 234 F.3d 136, 146 (3d Cir. 2000)).

       A Brady violation occurs when the defendant demonstrates “that (1) the

government withheld evidence, either willfully or inadvertently; (2) the evidence was

favorable, either because it was exculpatory or of impeachment value; and (3) the

withheld evidence was material.” United States v. Walker, 657 F.3d 160, 185 (3d Cir.

2011) (quoting Lambert v. Blackwell, 387 F.3d 210, 252 (3d Cir. 2004)). “[E]vidence is

material only if there is reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been different. A ‘reasonable

probability’ is a probability sufficient to undermine confidence in the outcome.” United

States v. Bagley, 473 U.S. 667, 682 (1985). In camera review of possible Brady material

is warranted when the defendant makes a “plausible showing,” based on more than

“[m]ere speculation,” that the inspection will reveal material evidence favorable to the

defendant. Riley v. Taylor, 277 F.3d 261, 301 (3d Cir. 2001) (en banc).

       Because Officer Norman did not testify, the only possibly relevant investigations

were the open investigation against Officers Betts and O’Malley for an alleged improper

search, and the finding of a departmental violation against Officer Reynolds for an

improper search. Even if we assume that this evidence was favorable to the defendant,

we cannot conclude that it was material. Five officers testified at Rodriguez’s trial and

presented very similar accounts; two of them had no IAD involvement at all despite

lengthy service on the police force. Moreover, any allegations of improper searches were

                                             4
too remote from the facts of this case to significantly undermine the officers’ credibility:

their testimony related solely their observations of Rodriguez’s actions on a public street

in broad daylight and subsequent events. In these circumstances, there is little

probability, let alone a reasonable one, that disclosure would have resulted in a different

outcome.

       Because the evidence at issue was not material, Rodriguez has not established a

Brady violation. By the same token, the mere existence of the IAD investigations,

without more, does not amount to a “plausible showing” that in camera review would

reveal favorable and material evidence. The District Court accordingly did not abuse its

discretion when it denied Rodriguez’s motion for in camera review.

                                             B.

       We review the sentencing decisions of the district courts for procedural and

substantive unreasonableness. We first consider whether the sentencing court committed

“significant procedural error, such as failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the [18

U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing

to adequately explain the chosen sentence—including an explanation for any deviation

from the Guidelines range.” United States v. Gall, 552 U.S. 38, 51 (2007). If the

decision is procedurally unreasonable, we remand for resentencing; otherwise, we affirm

the decision unless it is substantively unreasonable such that “no reasonable sentencing

court would have imposed the same sentence on that particular defendant for the reasons

the district court provided.” United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009)

                                              5
(en banc). Although we ordinarily review sentencing decisions for abuse of discretion,

because Rodriguez failed to object to his sentence before the District Court, we review

for plain error. United States v. Lewis, 660 F.3d 189, 192 (3d Cir. 2011). Plain error

occurs when there is “(1) an error; (2) that is plain; (3) which affects substantial rights;

and (4) seriously impairs the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Saferstein, 673 F.3d 237, 241 (3d Cir. 2012) (quoting

United States v. Cesare, 581 F.3d 206, 209 (3d Cir. 2009)) (internal quotation marks

omitted).

       Here, both parties agree the District Court inadvertently miscalculated the

mandatory minimum term of supervised release. The Court adopted the mandatory

minimum of sixteen years listed in the Presentence Investigation Report, to which neither

party had objected. But the correct mandatory minimum term of supervised release under

21 U.S.C. § 860 would appear to be eight years. Both parties conclude that this mistake

amounts to plain error and warrants remand for resentencing. We agree, and will remand

for resentencing on the term of supervised release.

                                             III.

       For the foregoing reasons, we will affirm the judgment of conviction and remand

for resentencing.




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