                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-5-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3762




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 07-3762
                                     ____________

                           UNITED STATES OF AMERICA

                                             v.

                                    ROHAN REID,

                                           Appellant
                                     ____________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                 (D.C. No. 03-cr-00205)
                     District Judge: Honorable A. Richard Caputo
                                     ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                    July 2, 2008

               Before: RENDELL, SMITH and FISHER, Circuit Judges.

                                 (Filed: August 5, 2008)
                                      ____________

                              OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.

      Defendant Rohan Reid violated the general conditions of his two-year term of

supervised release. The District Court sentenced Reid to 12 months’ incarceration for the
violations. Reid appeals from the judgment of sentence. For the reasons set forth below,

we will affirm.

                                              I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       On March 8, 2005, Reid was sentenced by the District Court to 27 months’

incarceration and two years’ supervised release for possession with intent to distribute

more than five grams of cocaine base. Reid’s term of supervised release commenced on

March 24, 2006. In November 2006, Reid was charged with two separate counts of

driving under the influence. On January 17, 2007, Reid was arrested for possession with

intent to distribute more than five grams of cocaine base. At a hearing on the

Government’s petition to revoke his supervised release, Reid admitted guilt to the above

violations. The District Court determined that the applicable Sentencing Guidelines range

for the supervised release violations was 12 to 18 months’ incarceration. Following

revocation of supervised release, the District Court sentenced Reid to the advisory

Guidelines minimum of 12 months to be served consecutively to the 63-month sentence

he was then serving for a separate federal drug offense.

       During the hearing, Reid’s counsel urged the District Court to apply his 12-month

sentence concurrently to his 63-month sentence. The District Court prompted Reid’s



                                              2
counsel to explain the rationale for applying the sentence concurrently. Reid’s counsel

noted that Reid had participated in substance abuse programs at the detention center and

in filming a cable television video that encouraged young individuals to avoid gang

activity. Reid’s counsel next testified to a positive change in Reid’s demeanor and

character. Reid’s counsel also suggested that Reid may have intentionally violated the

terms of his supervised release in order to seek the safety of custody, after having been

the target of one or more violent attacks since his initial release.

       The District Court then asked for the Government’s response. The Government

recommended a consecutive sentence, noting that Reid committed three violations within

one year of commencing supervised release and that the District Court had sentenced

Reid below the bottom of the advisory Guidelines range for his initial offense.

       In explaining its decision, the District Court noted that it had given Reid a “break”

on his original sentence. The District Court found that Reid had demonstrated an inability

to adjust to supervised release, noting that he had gotten into trouble shortly after his

release and in a “major way” with respect to his drug violation. Thereafter the District

Court stated that it believed it “appropriate” to apply Reid’s sentence consecutively, while

acknowledging that Reid’s counsel’s comments were “very astute and very insightful.”

The District Court stated that “I don’t think I have any choice frankly but to sentence you

consecutively.” Elsewhere, the District Court explained that it applied Reid’s sentence

consecutively because he committed the same offense for which he was originally



                                               3
incarcerated, stating that “[t]hat’s why I’m making it consecutive, that’s the reason, and I

think it’s the only thing that makes sense.” The District Court concluded that,

considering the Guidelines and “the factors contained in Title 18, U.S.C., Section

3553(a)[,] . . . this [is] an appropriate and reasonable sentence.” The District Court

concluded by sentencing Reid to the advisory Guidelines minimum of 12 months’

incarceration.

       This timely appeal followed.

                                             II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a). We review sentences imposed for violations of supervised release for

reasonableness under the statutory sentencing factors set forth in 18 U.S.C. § 3553(a).

United States v. Bungar, 478 F.3d 540, 542 (3d Cir. 2007). Our review of sentences is

“highly deferential,” and the challenging party bears the burden of proof in demonstrating

unreasonableness. Id. at 543.

                                             III.

       Reid appeals the District Court’s decision to apply his 12-month sentence for

violating the general terms of his supervised release consecutively, rather than

concurrently, to a sentence he is currently serving. In United States v. Dees, 467 F.3d 847

(3d Cir. 2006), we held that a district court had discretion to impose consecutive

sentences upon revocation of concurrent terms of supervised release based upon the same



                                              4
violation conduct. Id. at 852. A fortiori, pursuant to 18 U.S.C. § 3584(a), a district court

has the discretion to impose a sentence for a violation, which is consecutive to an

undischarged term of imprisonment for some entirely separate convicted offense. See

also U.S.S.G. § 7B1.3(f) (advising imposition of sentence for supervised release violation

to run consecutive to any sentence defendant is then serving).

       Nonetheless, Reid challenges the reasonableness of his consecutive sentence on

three grounds. First, he argues that the District Court considered impermissible factors in

imposing its sentence. Specifically, he argues that 18 U.S.C. § 3583(e)(3) prevents courts

that are imposing sentences for supervised release violations from considering factors set

forth in § 3553(a)(2)(A) (pertaining to the punitive purposes of sentencing) and

§ 3553(a)(3) (pertaining to the “kinds of sentences available”). Reid notes that the

District Court imposed a consecutive sentence after voicing its consideration of the

“sentencing factors set forth in 18 U.S.C. § 3553(a),” without the necessary qualification

purportedly required by § 3583(e)(3). Without deciding whether § 3583(e)(3) forbids

consideration of § 3553(a)(2)(A), (3) as a matter of law, see Bungar, 478 F.3d at 543 n.2,

we find no indication in the record that the District Court considered an impermissible

factor in reaching its decision. While the District Court did not explicitly state which

§ 3553(a) factors it considered in contradistinction with which ones it did not, “[t]here are

no magic words that a district judge must invoke when sentencing, as long as the record

shows that the court considered the § 3553(a) factors and any sentencing grounds



                                              5
properly raised by the parties which have recognized legal merit and factual support in the

record.” United States v. Dragon, 471 F.3d 501, 505 (3d Cir. 2006) (internal quotation

marks and citation omitted). Reid, therefore, reads too much into the District Court’s

reference to § 3553(a) as necessarily revealing that it considered any purportedly

forbidden factors.

       Reid next argues that the District Court improperly imposed a consecutive

sentence under the mistaken belief that it was compelled to do so, citing a solitary

comment that “I don’t think I have any choice frankly but to sentence you consecutively.”

The record clearly indicates, however, that the District Court gave “meaningful

consideration” to the relevant § 3553(a) factors in reaching its conclusion. Bungar, 478

F.3d at 543. The District Court noted its leniency on Reid’s initial sentence, Reid’s

breach of trust, and the number and frequency of violations, considerations that would

have been superfluous had the District Court believed that it was compelled to impose a

consecutive sentence.

       Finally, Reid argues that the District Court improperly applied a “reasonableness”

standard in determining the appropriate sentence, on the theory that reasonableness can

only be an appellate standard. This argument is unavailing. Never have we forbidden a

district court from characterizing its own sentence as reasonable under some (incorrect)

notion that appellate courts have a monopoly over using the word “reasonable.”




                                             6
                                    IV.

For the forgoing reasons, we will affirm the judgment of the District Court.




                                     7
