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


10-3-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3671




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                                                                 NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT


                                        No. 07-3671


                             UNITED STATES OF AMERICA

                                             v.

                                 TERRANCE D. WELDON,
                                               Appellant


                APPEAL FROM THE UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF NEW JERSEY
                              (D.C. Crim. No. 02-cr-00750-1)
                     District Judge: The Honorable William H. Walls


                         Submitted Under Third Circuit LAR 34.1(a)
                                    September 22, 2008


                   Before: BARRY, AMBRO and GARTH, Circuit Judges

                              (Opinion Filed: October 3, 2008)


                                         OPINION




BARRY, Circuit Judge

          Terrance Weldon appeals the District Court’s judgment of sentence. We will

affirm.
                                             I.

       Because we write only for the parties, we set forth only those facts that are relevant

to our analysis.

       Weldon, who served as mayor of Ocean Township, New Jersey from 1991 to 2002,

pleaded guilty to three counts of accepting bribery payments in the course of performing

his official duties, in violation of 18 U.S.C. §§ 1951 and 2. The parties agreed, and the

District Court found, that (1) the total offense level was 24; (2) Weldon’s criminal history

category was I; and (3) the resulting Sentencing Guidelines range was 51-63 months. The

government moved for a downward departure pursuant to U.S.S.G. § 5K1.1 on the

ground that Weldon had provided substantial assistance to the government in the

investigation and prosecution of other individuals. The Court denied that motion and

sentenced him to 58 months imprisonment.

       Weldon filed a timely notice of appeal. He argues that the District Court erred in

denying him a downward departure under § 5K1.1, and that his sentence is unreasonable.

                                             II.

       In reviewing the District Court’s judgment of sentence, “our role is two-fold. We

must first ensure that the district court committed no significant procedural error in

arriving at its decision.” United States v. Wise, 515 F.3d 207, 217 (3d Cir. 2008).

Examples of procedural errors include failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the factors set


                                              2
forth in 18 U.S.C. § 3553(a), selecting a sentence based on clearly erroneous facts, and

failing to provide an adequate explanation for the chosen sentence. Id. (quoting Gall v.

United States, 128 S. Ct. 586, 597 (2007)). We review claims of procedural error for

abuse of discretion. Id. If we conclude that the Court committed no procedural error, we

then review the substantive reasonableness of the sentence. “As long as a sentence falls

within the broad range of possible sentences that can be considered reasonable in light of

the § 3553(a) factors, we must affirm.” Id.

                                              III.

       Weldon first argues that the District Court erred in denying the government’s §

5K1.1 motion for a downward departure. “We do not have jurisdiction to review

discretionary decisions by district courts to not depart downward.” United States v.

Vargas, 477 F.3d 94, 103 (3d Cir. 2007); see also United States v. Cooper, 437 F.3d 324,

332-33 (3d Cir. 2006) (reaffirming, after United States v. Booker, 543 U.S. 220 (2005),

the validity of our pre-Booker decisions finding no jurisdiction to review a district court’s

discretionary decision to not depart); United States v. Casiano, 113 F.3d 420, 429 (3d Cir.

1997) (explaining that, absent legal error, a district court’s discretionary decision to not

depart under § 5K1.1 is “immune from appellate review”). Thus, to the extent Weldon

challenges the Court’s discretionary decision to not depart under § 5K1.1, we will dismiss




                                               3
his appeal for lack of appellate jurisdiction.1

       Weldon next claims that his sentence is unreasonable because the District Court

failed to meaningfully consider, and unreasonably applied, the § 3553(a) factors.

Specifically, he argues that the Court placed too little weight on §§ 3553(a)(1) (the nature

and circumstances of the offense and the history and characteristics of the defendant) and

(a)(6) (the need to avoid unwarranted sentence disparities among similarly situated

defendants), and too much weight on § 3553(a)(2)(C) (the need to protect the public).

Further, he argues that the Court improperly considered “extra-judicial” facts – i.e., the

history of corrupt politicians in New Jersey and elsewhere – in deciding Weldon’s

sentence.

       This claim is without merit. The record reflects that the District Court

meaningfully considered, and reasonably applied, the § 3553(a) factors. The Court

explicitly acknowledged evidence concerning Weldon’s history and characteristics, see §

3553(a)(1), including his history as a public official and a firefighter, the numerous letters

written on his behalf by friends and concerned citizens, press accounts that were generally

favorable toward him, his health conditions, and his wife’s health conditions. However,

the Court found that those factors were outweighed by other § 3553(a) factors. In




   1
      We note that the record reflects that the District Court understood it could have
granted a departure, but elected not to do so. Cf. Vargas, 477 F.3d at 103 (“Jurisdiction
[to review the denial of a departure] arises...if the district court’s refusal to depart
downward is based on the mistaken belief that it lacks discretion to do otherwise”.).

                                                  4
particular, it found that Weldon’s offense was “very, very serious[,] ...bespeak[ing] a lack

of respect for the law.” (App. 148.) See §§ 3553(a)(1) (nature and circumstances of the

offense) & (a)(2)(A) (the need for the punishment to reflect the seriousness of the

offense).2 Further, the Court explained that a significant sentence was necessary to

“provide adequate deterrence to criminal conduct by others” and to “protect the public

from...you and anyone else who might...try to do what you have done.” (App. 149.) See

§§ 3553(a)(2)(B) (the need to provide adequate deterrence) & (a)(2)(C) (the need to

protect the public). Finally, after noting that Weldon was at the “top of the pecking

order” of government corruption in Ocean Township, and that another defendant who was

“certainly not at the top” had been sentenced to 26 months imprisonment, the Court found

that a significant sentence was required to avoid unwarranted sentence disparities. (App.

150.) See § 3553(a)(6) (the need to avoid unwarranted sentence disparities). Based on its

consideration of these factors, the Court concluded that a within-Guidelines sentence of

58 months was appropriate. That sentence is “within the broad range of possible

sentences that can be considered reasonable in light of the § 3553(a) factors,” and thus,

“we must affirm.” Wise, 515 F.3d at 217.3

   2
     Weldon’s claim that the Court improperly considered the history of, and problems
associated with, political corruption in New Jersey and elsewhere lacks merit. The
Court’s comments concerning political corruption simply provided context for its finding
that Weldon committed a serious offense.
   3
      To the extent that Weldon’s briefs can be read to argue that the District Court erred
in denying him a downward variance or a lower within-Guidelines sentence in light of his
assistance to the government, that argument is without merit. The Court considered

                                             5
                                            IV.

       For the foregoing reasons, we will affirm the District Court’s judgment of

sentence. However, to the extent Weldon appeals the Court’s discretionary decision to

not depart under § 5K1.1, we will dismiss his appeal for lack of appellate jurisdiction.




Weldon’s assistance, but found that it was untimely, that it provided only marginal benefit
to the government, and that it provided information only as to targets who were less
culpable than Weldon. These findings are not clearly erroneous, and in light of the
Court’s consideration of the § 3553(a) factors, see supra, we cannot say that the failure to
grant Weldon a variance or a lower within-Guidelines sentence on this ground was
unreasonable.

                                             6
