                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-27-2009

USA v. Hall
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2026




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

Recommended Citation
"USA v. Hall" (2009). 2009 Decisions. Paper 1668.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1668


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 07-2026
                                     ____________

                           UNITED STATES OF AMERICA

                                            v.

                                  CLARENCE HALL,
                                              Appellant

                                     ____________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                                 (D.C. No. 06-cr-00177)
                       District Judge: Honorable James T. Giles
                                     ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 6, 2009

   Before: CHAGARES, HARDIMAN, Circuit Judges and GARBIS,* District Judge.

                                 (Filed: March 27, 2009)

                                     ____________

                              OPINION OF THE COURT
                                   ____________

GARBIS, District Judge.




      *
          The Honorable Marvin J. Garbis, Senior District Judge for the United States
District Court for the District of Maryland, sitting by designation.
       Appellant, Clarence Hall ("Hall"), convicted on a plea of guilty to bank robbery

charges, appeals from a 200 month sentence (twelve months higher than the top of the

applicable Sentencing Guideline range) imposed by Judge James T. Giles of the Eastern

District of Pennsylvania.

       For the reasons set forth herein, we affirm.

                                             I.

       Because we write exclusively for the parties, we will recount only those facts

essential to our decision.

       In early 1990, Hall committed seven bank robberies in Philadelphia, was arrested,

charged, pleaded guilty and was sentenced by Judge James T. Giles1 to 75 months and

three years of supervised release. Hall was released from prison and placed on supervised

release in 1995. In 1998, he was sentenced by Judge Giles to serve an additional nine

months in prison for violation of conditions of his supervised release. Hall completed this

sentence in November 1998.

       In December 1998 and January 1999, less than two months after his release from

prison, Hall engaged in seven more bank robberies. He was charged, convicted and

sentenced – by a Judge other than Judge Giles this time – to 70 months of incarceration

with a term of three years of supervised release. Hall was released from prison and was



       1
       The same District Judge who, sixteen years and thirteen bank robberies later,
imposed the sentence at issue herein.

                                             2
placed on supervised release in March 2004. Hall proceeded to violate conditions of

supervised release. By February 2006, he had absconded from a residential drug

treatment facility, cut off contact with his probation officer and commenced another

series of bank robberies. From February 15, 2006 to March 8, 2006, Hall engaged in

another six bank robberies. He was arrested, charged, pleaded guilty and came before

Judge Giles for the sentencing at issue.

       At sentencing Hall was found to be a Career Offender2 subject to an advisory

Sentencing Guidelines range of 151-188 months’ imprisonment. Judge Giles sentenced

Hall to 200 months’ imprisonment, twelve months above the Guidelines range.

       Hall contends that Judge Giles departed from the Sentencing Guideline range

without giving advance notice of his intent to do so as required by Rule 32(h).3 He also

contends that Judge Giles did not provide an opportunity to comment on the sentence in

violation of Rule 32(i)(1)(C).

       Because Hall did not present these issues to the District Court, the Court shall

apply the plain error standard. United States v. Couch, 291 F.3d 251, 252 (3d Cir. 2002).




       2
           See U.S.S.G. Section 4B1.1.
       3
           All Rule references are to the Federal Rules of Criminal Procedure.

                                              3
                                              II.


       District courts must follow a three step process in sentencing proceedings post

United States v. Booker, 543 U.S. 220 (2005). As stated by this Court:


              (1)     District courts must continue to calculate a defendant's
                      Guidelines Sentence precisely as they would have before
                      Booker . . .

              (2)     In doing so, they must formally rule on the motions of
                      both parties and state on the record whether they are
                      granting a departure and how that departure affects the
                      Guidelines calculation . . .

              (3)     Finally, they are required to exercise their discretion by
                      considering the relevant § 3553(a) factors in setting the
                      sentence they impose regardless whether it varies from
                      the sentence calculated under the Guidelines.

United States v. Gunter, 462 F.3d 237, 247 (3rd Cir. 2006) (internal quotation marks,

citations and alterations omitted). Accordingly, when a sentence diverges from the

initially calculated Guidelines range, the divergence can be based upon a departure (step

2) or a variance (step 3).

       A “departure” is a divergence from the originally calculated range “for reasons

contemplated by the Guidelines themselves (under U.S.S.G. § 4A1.3 and Ch. 5, Pt. K).”

United States v. Jackson, 467 F.3d 834, 837 n.2 (3d Cir. 2006). In contrast, a “variance”

is a divergence from Guidelines sentencing based on an exercise of the sentencing court’s

discretion in consideration of the 18 U.S.C. § 3553(a) factors. United States v. Floyd, 499

F.3d 308, 311 (3d Cir. 2007).

                                              4
       Rule 32(h) provides:

              Before the court may depart from the applicable sentencing
              range on a ground not identified for departure either in the
              presentence report or in a party's prehearing submission, the
              court must give the parties reasonable notice that it is
              contemplating such a departure. The notice must specify any
              ground on which the court is contemplating a departure.

       In view of Rule 32(h), it is important for sentencing courts to distinguish between

a departure and a variance as each is subject to different requirements. Floyd, 499 F.3d at

311.

       Appellant argues that he is entitled to resentencing because the District Court did

not expressly articulate whether the sentence included a departure or a variance.

However, at sentencing Judge Giles provided an adequate articulation that he was not

departing from the Guideline Range based upon Guideline provisions that would

authorize a departure. Rather, his statements made it clear that he was varying from a

Guideline sentence in the exercise of his sentencing discretion in consideration of the 18

U.S.C. § 3553(a) factors.

       In this regard, Judge Giles stated, following defense counsel's request for a

sentence within the 151 to 188 month Guideline range, a rationale based upon

consideration of § 3553(a) factors:

                    The sentence in the case is 200 months. A reasonable
              sentence in this case could be 20 years. And but for the national
              averages suggested by the Sentencing Guidelines the sentence
              would be 20 years. The Court has opted to impose less of a



                                             5
             sentence out of consideration of the Sentencing Guidelines [§
             3553(a)(4)] and that is 200 months.
                     There is a psychological reason for imposing a sentence
             above the Sentencing Guidelines and that is to impress upon the
             defendant the seriousness of the offense [§ 3553(a)(2)(A)] and
             the strong desire of the Court to protect the public from more
             activity of the kind that he has thus far demonstrated [§
             3553(a)(2)(C)].
                     The record of the defendant shows that there is a high
             likelihood that whenever he is released from prison he will
             resume bank robbery activity [§ 3553(a)(1)]. Hopefully he will
             not, but his record indicates that rehabilitative approaches to
             sentencing of him in the past have not deterred him from
             robbing banks [§ 3553(a)(2)(B)].
                     This sentence is designed to be fair, but punitive in the
             sense of impressing upon this defendant that the Court is not
             bound by the Sentencing Guidelines [emphasis added] .

                                          * * *

                    The sentence, in the Court’s opinion, is punitive, but not
             greater than is necessary for the offenses committed and it is
             also rehabilitative [§ 3553(a)].

App. 41-42, 44. And, Judge Giles concluded by asking counsel:

             Are there any 3553(a) factors that you want me to address that
             I may not have explicitly addressed?
Id. at 46.


       The Court concludes that Judge Giles articulated that he was varying rather than

departing from the Sentencing Guideline range. Accordingly, Appellant was not entitled

to advance notice under Rule 32(h). See Irizarry v. United States, 128 S.Ct. 2198 (2008);

United States v. Vampire Nation, 451 F.3d 189, 197 (3d Cir. 2006).




                                            6
                                             III.


       Hall contends that Judge Giles did not afford his attorney the opportunity to

comment on the District Court’s variance from the Guideline range. Rule 32(i)(1)(C)

provides:

              At sentencing, the court . . . must allow the parties' attorneys to
              comment on the probation officer's determinations and other
              matters relating to an appropriate sentence . . .

Of course, Judge Giles did expressly provide such an opportunity. After announcing what

the sentence would be, Judge Giles asked counsel: "Are there any 3553(a) factors that

you want me to address that I may not have explicitly addressed?" Defense counsel

responded: "Nothing from the defense." Nevertheless, Hall contends that this

opportunity, afforded after the District Judge expressed his intent regarding the sentence,

was not in compliance with Rule 32(i)(1)(C).

       The matter has not been addressed by this Circuit. However, in the context of a

departure, the United States Court of Appeals for the Fourth Circuit stated:

              By the time the parties received notice that an upward departure
              was under consideration, the court had already made a final
              ruling on the issue. The court did not solicit arguments from
              counsel before announcing the ruling. Thus, the sole option left
              to [the defendant] was to request reconsideration of a decision
              that had already been announced and incorporated into a
              judgment. This is not equivalent to proper adversarial process
              before a decision is reached; on the contrary, once a sentence is
              announced, both the specific constrictions of Rule 35(c) and the
              general inertia of the decision making process impose
              substantial burdens on a party seeking to modify a sentence.


                                              7
United States v. Spring, 305 F.3d 276, 282 (4th Cir. 2002).

       In the instant case, the intended sentence had been announced but not incorporated

in a judgment. Moreover, there is no reason to conclude that Judge Giles, having asked

for comments would not have given due consideration to whatever defense counsel chose

to present. Futhermore, Hall had ample opportunity to comment on all of the pertinent §

3553(a) factors and could hardly have been surprised by the Court’s stated reasons for

varying. As stated by the Supreme Court in Irizarry (quoting United States v. Vega-

Santiago, 519 F.3d 1, 5 (1st Cir. 2008)):

              In the normal case a competent lawyer . . . will anticipate most
              of what might occur at the sentencing hearing-based on the trial,
              the pre-sentence report, the exchanges of the parties concerning
              the report, and the preparation of mitigation evidence. Garden
              variety considerations of culpability, criminal history, likelihood
              of re-offense, seriousness of the crime, nature of the conduct
              and so forth should not generally come as a surprise to trial
              lawyers how have prepared for sentencing.

Irizarry, 128 S. Ct. at 2203.

       Moreover, even if there had been a failure to comply with Rule 32(i)(1)(C), in

view of the absence of objection in the District Court, Hall would have to show that the

error was obvious under the law and affected “substantial rights, that is, the error affected

the outcome of the proceedings.” Johnson v. United States, 520 U.S. 461, 467 (1997).

Hall has, by no means, done so.

       Hall now claims that given the chance, he could have refuted the upward variance

by arguing that the recidivism concerns motivating the District Judge to impose an

                                              8
upward variance were already accounted for in the calculated Guideline range. But this

argument was implicit in Hall’s general argument that the District Judge should impose a

below-Guidelines sentence, which was made prior to sentencing. Moreover, it was clear

that Judge Giles – who, coincidentally, had a judicial history with Hall and – was

exercising his discretion under § 3553(a) to consider Hall's especially egregious risk of

recidivism that was above and beyond that accounted for by the Guidelines.

       Hall has not presented any viable argument that could have affected the District

Judge’s decision to vary upward by twelve months from the Sentencing Guideline range.

Consequently, he cannot show that the outcome would have been different but for the

alleged error, and the high standard of plain-error review is not met. See United States v.

King, 454 F.3d 187 (3d Cir. 2006) (failure to properly calculate Guideline range before

applying § 3553(a) factors was erroneous but not plain error because the basis of the

variance was clear and permissible). Accordingly, even if there was a violation of Rule

32(i)(1)(C), there was no plain error warranting reversal.

       For the foregoing reasons, we affirm the judgment of the District Court.




                                             9
