                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-11-2006

USA v. Severino
Precedential or Non-Precedential: Precedential

Docket No. 05-3695




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                                             PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT
                      __________

                          No. 05-3695
                          __________

               UNITED STATES OF AMERICA

                                v.

                     JAMES J. SEVERINO,
                               Appellant
                        __________

         On Appeal from the United States District Court
             for the Western District of Pennsylvania
                 (D.C. Criminal No. 04-cr-00237)
          (District Judge: Honorable Joy Flowers Conti)
                           __________

        Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                         May 19, 2006

Before: RENDELL and VAN ANTWERPEN, Circuit Judges,
           and ACKERMAN, District Judge.*


    *
      Honorable Harold A. Ackerman, Senior United States
District Judge for the District of New Jersey, sitting by
designation.
                    (Filed: July 11, 2006)


LISA B. FREELAND
Federal Public Defender
RENEE PIETROPAOLO
Assistant Federal Public Defender
1450 Liberty Center
1001 Liberty Avenue
Pittsburgh, Pennsylvania 15222
Attorneys for Appellant

MARY BETH BUCHANAN
United States Attorney
LAURA SCHLEICH IRWIN
Assistant United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, Pennsylvania 15219
Attorneys for United States
                         __________

                 OPINION OF THE COURT
                       __________

ACKERMAN, District Judge.

       Defendant James Severino appeals the reasonableness of
his sentence on the grounds that the District Court failed to
recognize its authority to consider extraordinary acceptance of
responsibility as a factor in sentencing. After a careful review
of the record, we conclude that the District Court properly

                               2
understood its authority and the advisory nature of the
Sentencing Guidelines, and that the sentence it imposed was
reasonable. We will therefore AFFIRM the judgment of the
District Court.

                                 I.

       To support his heroin addiction, Defendant James
Severino robbed several Pittsburgh-area banks in June 2004.
Upon his arrest, he immediately gave a written statement
confessing to all three bank robberies. On September 15, 2004,
a federal grand jury in the Western District of Pennsylvania
returned a three-count indictment against Severino, charging
three counts of bank robbery in violation of 18 U.S.C. § 2113(a).

       At his arraignment before a Magistrate Judge on
September 30, 2004, Severino wanted to plead guilty but his
attorney apparently convinced him to plead not guilty. After the
arraignment hearing, Severino wrote a letter to the District Court
stating that he wanted to plead guilty and was upset with his
attorney’s efforts to prevent a guilty plea in the absence of a plea
agreement, and requesting appointment of new counsel. At a
hearing on this letter, defense counsel stated that after meeting
with his client, Severino agreed to have him continue as counsel,
that Severino would plead guilty, and that counsel was
negotiating a plea agreement with the Government.

        Prior to the plea hearing, Severino again wrote to the
court. He informed the court that “all I wanted to do from day
one is plead guilty, Go to jail, work in jail and start to pay my
restitution (50% of my pay) and hopefully take advantage of a

                                 3
Drug or Educational program offered.” (App. at 63-64.) He
also stated that “I do not want to waste a single dime more of the
government’s money on this case than possible” and that “I am
guilty and wish to plead guilty and go to jail and start paying my
debt.” (Id. at 64.) Severino pled guilty to all three counts of the
indictment without a plea agreement.

        Prior to sentencing, and apparently against the advice of
counsel, Severino wrote personal letters to the banks and tellers
he victimized. In these letters, he took full responsibility for his
actions and apologized. At sentencing, the probation officer
stated that “[t]his is the first case that I’ve seen where someone
has actually written the tellers their apologies. It is certainly the
first case that someone has wanted to plead guilty at the
arraignment phase and has pursued pleading guilty as fervently
as Mr. Severino has.” (App. at 99.) Severino also wrote to the
court prior to sentencing. He again expressed his guilt and
shame, and discussed his desire to rehabilitate himself. He
stated in this letter that “I want to go to the drug program. I
want to work to pay back the money I took. I want to take
advantage of schooling, any and all opportunities. I don’t want
to come out of jail not learning anything . . . . I want to learn and
have a plan not to come back or be a part of recidivism.” (App.
at 73.)

       The District Court sentenced Severino on June 24, 2005.
Under the advisory provisions of the United States Sentencing
Guidelines, the District Court found that Severino had a total
offense level of 24 and a criminal history category of III,
subjecting him to an advisory range of 63-78 months
imprisonment. On the basis of “extraordinary acceptance of

                                 4
responsibility,” Severino’s counsel requested that the District
Court impose a sentence below the suggested Guideline range.
In his moving papers and at sentencing, counsel appeared to ask
that the District Court issue a sentence only 12 months below
the minimum suggested Guideline sentence of 63 months.

       After hearing argument, the District Court imposed a
sentence of 63 months imprisonment on each of the three
counts, to run concurrently. In declining to issue a sentence
below the minimum sentence under the suggested Guideline
range, the District Court referenced this Court’s opinion in
United States v. Lieberman, 971 F.2d 989 (3d Cir. 1992), and
recent amendments to the Guidelines regarding downward
departures for acceptance of responsibility:

             The problem that I have with that is
             that in the guidelines – and the
             Lieberman case, I think, is helpful
             to you here; but I believe it
             predated the situation where they
             changed the guidelines and
             removed a basis for downward
             departure of anything that had to do
             with acceptance of responsibility.
             Looking at the person’s use of
             drugs and all, there are a number of
             other factors – I think I have the –
             it’s under 5K1.1. That was all
             removed from there; so when you
             look at the guidelines, under the
             guidelines there wouldn’t be a basis

                              5
             for departure from the guidelines,
             based on the factors that you’re
             arguing.

(App. at 103.) After defense counsel noted that the Guideline
provision mentioned by the Court was now “an advisory
matter,” the Court observed that the amendment to the
Guidelines “sort of cuts against the applicability of the
Lieberman case.” (App. at 103.)

      In discussing the sentencing factors of 18 U.S.C.
§ 3553(a), the District Court stated:

             Then you look at the kind of
             sentences and the sentencing range
             under the Sentencing Guidelines.
             When you look at the Sentencing
             Guidelines, you know, they’ve
             already taken into account the
             three-level reduction for the
             acceptance of responsibility, and
             then there’s a prohibition in the
             guidelines from considering any
             extraordinary acceptance of
             responsibility.

             So when you look at the kinds of
             sentences in the sentencing range
             established under the Sentencing
             Guidelines, those factors, while
             they’re very compelling and I am –

                             6
              though I have to commend the
              Defendant for doing what he did,
              you know, no one else has done it
              in – at least the probation officer
              who is here today has never heard
              of anyone else doing that, and that
              bodes very well, but that doesn’t –
              you know, for the guidelines, I
              can’t do – I could not depart under
              the guidelines.

(App. at 106-07.) The court further commented that “I don’t
know that, considering Section 3553, that there’s a basis within
there that I can find to depart from the guidelines.” Finally, in
passing sentence, the District Court stated:

              But when I have to sentence, I have
              to look at a lot of things; and as
              much as I have respect for what
              you’ve done, that isn’t something
              that I’m going to reduce your
              sentence for. An acceptance of
              responsibility is taken into account
              in the three points in the reduction,
              so I am going to follow the
              guidelines.

              ....

              I feel that what will benefit society
              and benefit you is to stay within the

                               7
              guidelines, but to go at the very
              lowest level of the guidelines,
              which would be 63 months.

(App. at 111.)

       The District Court entered its judgment of conviction and
sentence on July 5, 2005. This timely appeal followed.1 We
have jurisdiction over the District Court’s Order of judgment
and conviction pursuant to 28 U.S.C. § 1291. We have
jurisdiction to review Severino’s sentence pursuant to 18 U.S.C.
§ 3742(a)(1). United States v. Cooper, 437 F.3d 324, 327-28
(3d Cir. 2006).

                                II.

        On appeal, Severino argues that the District Court erred
by failing to recognize its authority to issue a sentence below the
range suggested by the Guidelines on the basis of his
extraordinary acceptance of responsibility.             Under the
sentencing terminology recently adopted by this Court, such a
sentence “not based on a specific Guideline-departure
provision” would constitute a “variance,” as opposed to a
departure. See United States v. Vampire Nation, ___ F.3d ___,
No. 05-1575, slip op. at 8 n.2 (3d Cir. June 20, 2006) (citing
United States v. Sitting Bear, 436 F.3d 929, 932-33 (8th Cir.
2006)). Severino also argues that by failing to consider all
relevant factors under § 3553(a), the sentence imposed by the
District Court was unreasonable.

       In United States v. Booker, the Supreme Court held that


  1
   Shortly after filing his appeal, Severino filed a pro se motion
to modify or reconsider his sentence, a motion which the District
Court denied.

                                8
the United States Sentencing Guidelines are advisory and that
district courts must merely consider the Guidelines in imposing
sentences that promote the “sentencing goals” listed in
§ 3553(a). Booker, 543 U.S. 220, 264, 259-60 (2005); Cooper,
437 F.3d at 325-26. In Cooper, this Court established the
contours of our review under Booker. The appellant bears the
burden to demonstrate that a sentence was unreasonable.
Cooper, 437 F.3d at 332. “[W]e must first be satisfied that the
court exercised its discretion by considering the relevant
factors” under § 3553(a). Id. at 329. “The record must
demonstrate that the trial court gave meaningful consideration
to the § 3553(a) factors.” Id. Those factors include
consideration of the applicable Guideline ranges and policy
statements. 18 U.S.C. § 3553(a)(4)-(5).

        We review deferentially a district court’s application of
the § 3553(a) factors to the facts of a case, and must ensure only
that “‘the district judge imposed the sentence he or she did for
reasons that are logical and consistent with the factors set forth
in section 3553(a).’” Id. (quoting United States v. Williams, 425
F.3d 478, 481 (7th Cir. 2005)). “[I]t is less likely that a within-
guidelines sentence, as opposed to an outside-guidelines
sentence, will be unreasonable,” but a “within-guidelines
sentence is not necessarily reasonable per se.” Id. at 331. In
sum, “the record should demonstrate that the court considered
the § 3553(a) factors and any sentencing grounds properly raised
by the parties which have recognized legal merit and factual
support in the record.” Id. at 332.

                               III.

       Severino does not ask us to decide, in determining the
applicable advisory Guideline range, whether the District Court
could have granted a downward departure under U.S.S.G.
§ 5K2.0(d), which states that “the court may not depart from the
applicable guideline range based on . . . (2) The defendant’s

                                9
acceptance of responsibility for the offense, which may be taken
into account only under § 3E1.1 (Acceptance of
Responsibility).” U.S.S.G. § 5K2.0(d) (policy statement).2
Severino contends, however, that based on comments made by
the District Court at sentencing, the District Court erred in ruling
that the Guidelines prevented her from considering
extraordinary acceptance of responsibility in issuing a variance
below the Guideline range.


   2
    We held in Lieberman that under the policy statement of
then-current § 5K2.0 of the Guidelines, “a sentencing court may
depart downward when the circumstances of a case demonstrate
a degree of acceptance of responsibility that is substantially in
excess of that ordinarily present.” Lieberman, 971 F.2d at 996.
However, since Lieberman, the Sentencing Commission, in
compliance with Congress’s directive in the Prosecutorial
Remedies and Other Tools to end the Exploitation of Children
Today Act of 2003, amended § 5K2.0 specifically to preclude
certain departures. Pub. L. No. 108-21, § 401(m), 117 Stat. 650,
675 (2003) (requiring the Sentencing Commission to
“promulgate . . . appropriate amendments . . . to ensure that the
incidence of downward departures is substantially reduced”).
Section 5K2.0(d) states that “the court may not depart from the
applicable guideline range based on . . . (2) The defendant’s
acceptance of responsibility for the offense, which may be taken
into account only under § 3E1.1 (Acceptance of
Responsibility).” U.S.S.G. § 5K2.0(d) (policy statement).
       Here, Severino received the full three-level reduction for
acceptance of responsibility under § 3E1.1. While we note that
the District Court reasonably questioned the continued vitality
of Lieberman under § 5K2.0(d)(2), this appeal only requires us
to decide whether the District Court understood this provision
to mean that it lacked the authority to consider extraordinary
acceptance of responsibility in issuing a variance pursuant to the
§ 3553(a) factors.

                                10
        This Court has not specifically addressed the ability of
sentencing judges post-Booker to consider extraordinary
acceptance of responsibility in issuing sentence. We agree with
the guidance of other courts that after Booker, “a guidelines
departure prohibition does not preclude the district court from
considering that factor when the issue is a variance under
Booker.” United States v. Gatewood, 438 F.3d 894, 897 (8th
Cir. 2006); see also, e.g., United States v. Lake, 419 F.2d 111,
114 (2d Cir. 2005) (commenting that “absent the strictures of the
Guidelines, counsel would have had the opportunity to urge
consideration of circumstances that were prohibited as grounds
for a departure” under § 5K2.0(d)); United States v. Milne, 384
F. Supp. 2d 1309, 1312 (E.D. Wis. 2005) (holding that post-
Booker, “courts may grant additional consideration to
defendants who demonstrate acceptance beyond that necessary
to obtain a two or three level reduction under § 3E1.1” because
“such conduct bears directly on their character, § 3553(a)(1),
and on how severe a sentence is necessary to provide deterrence
and punishment, § 3553(a)(2)”). Therefore, if the District Court
held that it could not consider extraordinary acceptance of
responsibility under the sentencing factors of § 3553(a), such
error could render Severino’s sentence unlawful under 18 U.S.C.
§ 3742(a)(1) and require reversal. However, we need not
consider this issue in this case, because the District Court did
not hold that reliance on a Guideline-prohibited factor was
impermissible. Our thorough review of the record demonstrates
to us that the District Court understood its authority to consider
extraordinary acceptance of responsibility post-Booker but
merely exercised its discretion not to reduce its sentence below
the suggested Guideline range on that basis.

        This Court’s review of the entire record reveals that the
District Court well understood the advisory nature of the
Guidelines and its duty to consider the Guidelines and other
factors pursuant to the sentencing goals outlined in § 3553(a).
Prior to sentencing, the District Court issued tentative findings

                               11
which recognized that the Guidelines are advisory, that it must
sentence defendants in accordance with the § 3553(a) factors,
and that it must consider the Guidelines but not be bound by
them. (App. at 75-76.)3 The District Court reiterated these


  3
   In its tentative findings, the District Court stated:
               In light of the United States
               Supreme Court’s holding in United
               States v. Booker, 543 U.S. __
               (2004) [sic], the United States
               Sentencing Guidelines are advisory
               and no longer mandatory in the
               federal courts.      The court is
               directed to sentence criminal
               defendants in accordance with the
               factors set forth in 18 U.S.C.
               § 3553(a). One of the factors
               enumerated in section 3553(a) that
               the court is required to consider is
               “the kinds of sentence and the
               sentencing range established for
               under the United States Sentencing
               Guide line s .”       18 U.S.C.
               § 3553(a)(4). In fact, the United
               States Supreme Court stated that
               “[t]he district courts, while not
               bound to apply the Guidelines,
               must consult those Guidelines and
               take them into account when
               sentencing.” Booker, 543 U.S. at
               ___. Accordingly, the court’s
               tentative findings reflect the
               advisory Guidelines range for
               defendant’s offense as set forth by
               the United States Sentencing

                                12
understandings at sentencing. (App. at 83.) At sentencing, the
District Court calculated and considered the applicable
Guideline range, as required under § 3553(a)(4) and directed by
Booker and Cooper. Booker, 543 U.S. at 264; Cooper, 437 F.3d
at 330. In considering Severino’s motion for a variance, the
District Court first properly consulted the Guidelines and
reasonably concluded that § 5K2.0(d) prohibited a downward
departure under the Guidelines based on extraordinary
acceptance of responsibility. The court never stated that it
lacked authority otherwise to consider this factor, only that the
Guidelines themselves do not allow departure on that basis.

       After making these Guideline determinations, the District
Court proceeded to an express consideration of the sentencing
factors under § 3553(a). (App. at 104-07.)4 The District Court


             Guidelines.      At the time of
             sentencing, the court will impose
             the defendant’s sentence in
             consideration of all of the factors
             set forth under section 3553(a).
(App. at 75-76.)
     4
       The District Court specifically discussed each of the
§ 3553(a) factors, including “the nature and characteristics of
the offense and the history and characteristics of the Defendant”
(App. at 104); “secondly, the need for the sentence imposed . .
. to reflect the seriousness of the offense to promote respect for
the law and to provide just punishment for the offense” (id. at
105); “to protect the public from further crimes of the
Defendant” (id.); “to provide the Defendant with needed
educational training, needed medical care, or other correctional
treatment in the most effective manner” (id. at 106); “the kind
of sentences involved” (id.); “the kinds of sentences and the
sentencing range established under the Guidelines” (id.); “any
pertinent policy statement issued by the Sentencing

                               13
deliberately addressed each factor and arguments pursuant to
each factor. The court’s discussion demonstrates that it went
beyond a “rote statement” of the factors and “gave meaningful
consideration to the § 3553(a) factors.” Id. at 329. In
specifically addressing § 3553(a)(4), the District Court noted
that the Guidelines take acceptance of responsibility into
account in allowing for a three-level reduction and that the
Guidelines prohibit any further reduction. The District Court
clearly cabined this discussion to § 3553(a)(4)’s requirement
that courts consider “the kind of sentences in the sentencing
range established by under the Sentencing Guidelines.” (App.
at 106.) Under this rubric, the court concluded that while
“compelling,” the court “could not depart under the guidelines.”
(Id. at 107 (emphasis added).)

       After reviewing the § 3553(a) factors, the court
acknowledged that “I don’t know that, considering Section
3553, that there’s a basis within there that I can find to depart
from the Guidelines, even though I’m . . . impressed with what
the Defendant has done.” (App. at 107-08.) Severino suggests
that this statement shows that the court concluded that the
Guidelines denied it authority to issue a sentence lower than the
suggested Guideline range. However, the court’s consideration
of the § 3553(a) factors demonstrates to this Court that the
District Court weighed all the relevant factors but determined
that Severino’s acceptance of responsibility, while “impressive,”
did not warrant a variance below the advisory Guideline range.

       Any doubt as to the District Court’s understanding of its
authority to issue a sentence outside the Guideline range, and its



Commission” (id. at 107); “the need to avoid unwarranted
sentence disparities among Defendants with similar records who
have been found guilty of similar conduct” (id.); and “the need
to provide restitution to the victims of any of the offenses” (id.).

                                14
conscious decision to not do so and instead accept the advice of
the Guidelines, may be erased by examining the court’s final
comments before passing sentence.             The court fully
acknowledged and expressed its “respect” for Severino’s
“remorse” and his efforts to accept responsibility (App. at 110-
11), but then found that such acceptance “isn’t something that
I’m going to reduce your sentence for” (id. at 111). Noting that
the Guidelines take acceptance of responsibility into account,
the court elected to follow the advice of the Guidelines. The
court concluded that the result that would “benefit society and
benefit [Severino] is to stay within the guidelines, but to go at
the very lowest level of the guidelines, which would be 63
months.” (Id.)

        The District Court’s statement that Severino’s impressive
acceptance of responsibility “isn’t something that I’m going to
reduce your sentence for” clearly implies to this Court that the
District Court understood that it could reduce sentence on that
basis, but that it chose not to do so based upon its consideration
of the § 3553(a) factors, including consultation of the Guidelines
under § 3553(a)(4). The District Court reinforced this
understanding by stating that it chose “to stay within the
guidelines.” This statement reflects that the District Court knew
it could issue a sentence outside the range suggested by the
Guidelines, but that its consideration of the § 3553(a) factors
and the circumstances of the case yielded the conclusion that
society and Severino himself would best benefit from a sentence
within the range recommended by the Guidelines.

       Severino argues that the court erred by “restrict[ing]
consideration of ‘acceptance-related’ factors to its calculation of
the advisory guideline range under § 3553(a)(4)” (Def.’s Br.
30), and that had the court understood its authority, “it would
have included [acceptance-based] circumstances in its
methodical recitation of the § 3553 factors (somewhere aside
from within the narrow confines of § 3553(a)(4))” (Def.’s Reply

                                15
Br. 6). However, just because the District Court did not
explicitly mention acceptance of responsibility with regard to
any other § 3553(a) factor does not mean that the District Court
did not understand its ability to weigh such concerns under other
factors. Rather, the District Court simply decided, in its
discretion, that the Guidelines were persuasive on this issue and
it did not believe that a lower sentence on the basis urged by
Severino was warranted. While the Guidelines are no longer
mandatory post-Booker, they still must be consulted and
“provide a natural starting point for the determination of the
appropriate level of punishment for criminal conduct.” Cooper,
437 F.3d at 331. Furthermore, district judges are not required
“to routinely state by rote that they have read the Booker
decision or that they know the sentencing guidelines are now
advisory.” Cooper, 437 F.3d at 329. Therefore, absent an
express statement or other evidence to the contrary, we will not
find a sentence unlawful merely because a sentencing court has
not indicated that the Guidelines are advisory. The District
Court here started with the Guidelines, while recognizing that
they were not binding, and evidently concluded that they
adequately accounted for the level of acceptance of
responsibility displayed in this case.

       Severino suggests that the District Court had not only the
authority but the “obligation . . . to sentence below the
guidelines range on the basis of acceptance of responsibility
simply by properly applying Booker’s § 3553(a) analysis.”
(Def.’s Br. 33.) To the contrary, Booker enhanced judicial
discretion in sentencing rather than restricting it. See Vampire
Nation, __ F.3d at __, slip op. at 9 (commenting that “[w]hat has
changed post-Booker, is that sentencing is a discretionary
exercise”). We review the application of the § 3553(a) factors
deferentially, requiring only that the sentence be imposed for
logical reasons consistent with the broad goals of § 3553(a).
Cooper, 473 F.3d at 330. The District Court indeed could have
stated its reasoning with greater precision, but this Court

                               16
recognized in Cooper that district judges issue sentencing
decisions from the bench in “spontaneous remarks” that are
“unlikely to be a perfect or complete statement of all of the
surrounding law.” Cooper, 437 F.3d at 330 n.8 (quotation
omitted). Isolating certain statements of the court to suggest that
the court somehow felt obligated to follow the Guidelines
ignores the context of those statements.

                               IV.

       The District Court gave meaningful consideration to the
§ 3553(a) factors, and it reasonably imposed a sentence at the
low end of the suggested Guidelines range for logical reasons
consistent with those factors and the circumstances of this case.
Cooper, 437 F.3d at 330. Severino has not met his burden to
show otherwise. We conclude that the District Court’s sentence
was reasonable under Booker, and we therefore will AFFIRM.




                                17
