                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-6-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3672




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"USA v. Boglin" (2004). 2004 Decisions. Paper 865.
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                                                              NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ____________

                                    No. 03-3672
                                   ____________

                         UNITED STATES OF AMERICA

                                         v.

                              RONALD T. BOGLIN
                              a/k/a Ronald Thompson

                                     Ronald T. Boglin,

                                           Appellant
                                   ____________

                   On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                               (D.C. No. 01-cr-00274)
                    District Judge: Honorable R. Barclay Surrick
                                    ____________

                     Submitted Under Third Circuit LAR 34.1(a)
                                 March 30, 2004

              Before: ALITO, FISHER and ALDISERT, Circuit Judges.

                               (Filed : April 6, 2004)

                                   ____________

                            OPINION OF THE COURT
                                 ____________

FISHER, Circuit Judge.
       Ronald T. Boglin appeals his sentence for being a felon-in-possession, arguing that

the district court abused its discretion in sentencing him to a term of imprisonment that

would run consecutively to his state sentence for murder. We will affirm.

       The parties are familiar with the facts, which will not be recited here in detail. On

October 29, 2000, Boglin murdered his eight-week old son by shaking him to death.

Boglin told the police that he had shaken the child because he had been crying.

Philadelphia detectives obtained a search warrant for Boglin’s residence, where they

found a handgun hidden under a mattress.

       In state court, Boglin pleaded guilty to murder and was sentenced to 10 to 20 years

of imprisonment. The state court was aware that Boglin faced a mandatory minimum

15-year federal sentence and stated in the sentencing order “If the defendant is sentenced

on the federal gun charge, at the end of his minimum the defendant is to be paroled to

federal Institution to serve the federal sentence.”

       In federal court, Boglin was indicted under 18 U.S.C. §§ 922(g)(1) and 924(e) for

being a felon-in-possession. Boglin pleaded guilty. The parties stipulated that pursuant

to U.S.S.G. § 5G1.3(c), “the court may for the instant offense impose a sentence to run

concurrently, partially concurrently, or consecutively to the prior undischarged term of

imprisonment to achieve a reasonable punishment for the instant offense.” The

presentence report found that Boglin had been convicted of three prior felony drug

offenses, making him an Armed Career Criminal within the meaning of U.S.S.G. § 4B1.4.



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The presentence report also showed that Boglin had been convicted as an adult eight

times and was subject to several disciplinary infractions while in custody at the

Philadelphia federal detention center. Boglin’s adjusted total offense level was 30 with a

criminal history of VI. Because Boglin was an Armed Career Criminal, his guideline

range for imprisonment was 180 to 210 months.

       At Boglin’s federal sentencing hearing, the parties recognized that the decision of

whether Boglin might be paroled after his 10-year minimum state sentence rested not with

the sentencing judge, but with the Pennsylvania Parole Board. Boglin therefore asked the

district court to make his federal sentence run partially concurrently to his state sentence.

The court acknowledged that a federal sentence of 15 years running consecutive to an

indeterminate state sentence of 10 to 20 years could give Boglin up to 35 years in prison

from the date of his initial arrest.

       The government countered that the federal crime of being a felon-in-possession

was separate and distinct from the state crime of murder; that Boglin was a recidivist; and

that protection of society was a “paramount” consideration under 18 U.S.C. § 3553(a).

The government also argued that a federal sentence that would start after 10 years of a

potential 20-year state sentence would result in Boglin receiving little punishment for his

federal offense. Accordingly, the government requested a consecutive sentence.

       The court recognized that the Parole Board might decide not to parole Boglin after

10 years. Nevertheless, held the court, Boglin’s sentence should not only fit the crime,



                                              3
but deal with his effect on society. Boglin had eight prior convictions and his crimes had

escalated into murder. While incarcerated on the federal charge, there were disciplinary

problems. The court therefore sentenced Boglin to a 15-year term of imprisonment to run

consecutively to the state sentence, along with three years of supervised release and a

special assessment of $100.00.

       The District Court had jurisdiction under 18 U.S.C. § 3231. We exercise

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.1 We exercise plenary review

over the construction of the sentencing guidelines, and review the determination to

impose a consecutive sentence for an abuse of discretion. United States v. Saintville, 218

F.3d 246, 248 (3d Cir. 2000).

       We find no abuse of discretion or error of law. The parties correctly stipulated to

U.S.S.G. § 5G1.3(c), a policy statement indicating that the sentence “may be imposed to

run concurrently, partially concurrently, or consecutively to the prior undischarged term

of imprisonment to achieve a reasonable punishment for the instant offense.” U.S.S.G. §

5G1.3(c) (2001). 2 The relevant application note states that:

              [t]o achieve a reasonable punishment and avoid unwarranted
              disparity, the court should consider the factors set forth in 18

   1
    Boglin’s trial attorney failed to follow his client’s instructions to file timely notice of
appeal. On August 29, 2003, the district court granted Boglin the right to file a direct
appeal nunc pro tunc pursuant to a motion under 28 U.S.C. § 2255. Boglin filed timely
notice of appeal on September 5, 2003.
   2
    As Boglin was sentenced July 24, 2002, we use the 2001 guidelines in effect at that
time. U.S.S.G. § 1B1.11(a).

                                               4
              U.S.C. § 3584 (referencing 18 U.S.C. § 3553(a)) and be
              cognizant of:

              (a)      the type (e.g., determinate, indeterminate/parolable)
                       and length of the prior undischarged sentence;
              (b)      the time served on the undischarged sentence and the
                       time likely to be served before release;
              (c)      the fact that the prior undischarged sentence may have
                       been imposed in state court rather than federal court, or
                       at a different time before the same or different federal
                       court; and
              (d)      any other circumstance relevant to the determination of
                       an appropriate sentence for the instant offense.

U.S.S.G. § 5G1.3 app. n. 3 (2001).

       In turn, 18 U.S.C. § 3553(a) requires the sentencing court to consider, inter alia:

              (1)      the nature and circumstances of the offense and the
                       history and characteristics of the defendant; [and]
              (2)      the need for the sentence imposed--
                       (A)    to reflect the seriousness of the offense, to
                              promote respect for the law, and to provide just
                              punishment for the offense;
                       (B)    to afford adequate deterrence to criminal
                              conduct; [and]
                       (C)    to protect the public from further crimes of the
                              defendant[.]

18 U.S.C. § 3553(a).

       The sentencing transcript makes it clear that the district court considered these

factors in imposing Boglin’s sentence. Boglin had been convicted of eight prior offenses.

His crimes escalated into the murder of his own child. Under these circumstances, the

district court was well within its discretion to impose a consecutive sentence.




                                               5
       Boglin notes that the court could have imposed a partially concurrent sentence to

reflect what his federal sentence might have been had the murder been included in the

federal proceedings. However, the Sentencing Guidelines were amended in 1995 to make

it clear that courts need not engage in “hypothetical” sentencing. Saintville, 218 F.3d at

248 (under 1995 amendments to U.S.S.G. § 5G1.3, “a sentencing court no longer must

make [a] hypothetical calculation”); see also U.S.S.G. App. C at am. 535 (amendment

gives “additional flexibility to impose, as appropriate, a consecutive, concurrent, or

partially concurrent sentence in order to achieve a reasonable punishment”).

       The sentencing transcript makes it clear that the district court was aware of its

authority to grant a concurrent, partially concurrent, or consecutive sentence. Although it

was not obliged to make specific findings, the district court did explain its rationale and

was aware that Boglin could face up to a 35-year sentence, but declined to impose a

partially consecutive sentence to match a “hypothetical” result. Although the court stated

that a 25-year sentence would not be unreasonable, the sentencing transcript makes it

clear that the district court also believed that even a 35-year sentence – the state portion of

which, noted the Court, might be lessened by good behavior while in prison – would not

be unreasonable either. Under the circumstances, the court did not abuse its discretion.

       Accordingly, we AFFIRM Boglin’s sentence.

________________________




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