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


6-19-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2295




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"USA v. Wilder" (2008). 2008 Decisions. Paper 1006.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1006


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                                                   NON-PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                       No. 06-2295


            UNITED STATES OF AMERICA

                             v.

                    JASON WILDER,
                         a/ka Dre
                     a/k/a Kevin Best
                        a/k/a Duck

                       Jason Wilder,

                                            Appellant


         On Appeal from the District Court for the
               Western District of Pennsylvania
              (District Court No. 03-cr-00260-4)
  Chief District Judge: The Honorable Donetta M. Ambrose


     Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                      May 22, 2008

Before: SMITH, HARDIMAN, and NYGAARD, Circuit Judges

                   (Filed: June 19, 2008)



                        OPINION
SMITH, Circuit Judge.

       On September 16, 2005, Jason Wilder, a Jamaican citizen, was convicted by a jury

of conspiring to distribute and possess with the intent to distribute in excess of 100

kilograms of marijuana in violation of 21 U.S.C. § 846. He was sentenced to 121 months

in prison, the lowest point on the advisory guideline range for which he was found to

qualify. Wilder appeals his conviction1 on the grounds that (1) the District Court should

not have allowed the government to use, during its closing argument, an organizational

chart of the conspiracy that had not been admitted into evidence, and (2) the sentence

imposed was unreasonable in light of the factors set out in 18 U.S.C. § 3553(a). Because

we find that the evidentiary issue has not been preserved for appeal and that the sentence

was reasonable, we will affirm the judgment of the District Court.

       The loci of the marijuana conspiracy existed in both Pittsburgh, Pennsylvania and

in Tucson, Arizona, with three brothers – Andre, Michael and Christopher Williams –

shipping marijuana packages between the two locations. Andre identified various

individuals – including Wilder – to locate vacant or abandoned buildings in Pittsburgh in

order to use those addresses for marijuana shipments. Wilder would then recruit young

women to wait at those addresses for the marijuana shipments to arrive, and in turn, wire

money to Tucson in exchange for the packages.

       In July 2002, postal officials in Texas alerted their counterparts in Pittsburgh to an


       1
         The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231.
Appellate jurisdiction exists under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                              2
unusual package with a fictitious return address which was addressed to an individual

who did not typically receive mail at the address. When the package arrived in

Pittsburgh, officials had a drug dog brought to the scene. A federal search warrant was

subsequently obtained and the package, when opened, was found to contain 31.5 pounds

of marijuana.

       Agents placed a monitor inside the package, sealed it, and delivered it to Julia

Carrington. Upon receiving the package, she was taken into custody and told agents that

Wilder had coerced her into accepting a package containing marijuana. After Carrington

had been interviewed by the police, Clarence Bennett arrived at her home to retrieve the

package and explained that Wilder had instructed him to pick up the package. Drug

Enforcement Agency task force officers questioned Bennett after he left the residence,

inquiring as to the contents of the package and where he intended to take it. Bennett

admitted Wilder had instructed him to retrieve the package and to bring it to Wilder, who

would be waiting at a nearby gas station. Bennett participated in a controlled delivery of

the package to Wilder, and surveillance observed Wilder and another individual retrieve

the package from Bennett. Although Wilder fled the area and initially evaded capture, he

was later apprehended.

       After a jury convicted Wilder, the District Court determined that his base offense

level was 30 based on the 2000 pounds of marijuana involved in the conspiracy. Wilder’s

criminal history category was designated as a Level III for prior convictions in 1992 and

1996. Notably, following Wilder’s 1996 conviction, he was deported but then returned to

                                             3
the United States illegally. Furthermore, Wilder had pending charges in the Municipal

Court of Philadelphia for possessing a firearm and a controlled substance.

       Wilder first argues that the District Court erred when it allowed the Government to

use an organizational chart depicting the various members of the conspiracy in its closing

argument. However, in examining the record, we find that Wilder’s counsel did not

preserve this issue for appeal by objecting on the record. We, therefore, will review the

District Court’s ruling with respect to the chart under a plain error standard. Federal Rule

of Criminal Procedure 52(b) provides that “plain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the court.” Fed.

R. Crim. P. 52(b). Accordingly, there must be an “error” which is “plain” and that

“affects substantial rights.” United States v. Olano, 507 U.S. 725, 732 (1993).

“Affecting substantial rights” means that the error must have been prejudicial to the

defendant and have affected the outcome of the district court proceeding. Id. at 734. The

decision to correct a forfeited error is “within the sound discretion of the court of appeals,

and the court should not exercise that discretion unless the error ‘seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings.’” Id. (quoting United

States v. Young, 470 U.S. 1, 15 (1985)).

       There was no plain error. The chart used in closing argument was an

organizational graph depicting the structure of the conspiracy and including pictures of its

members. The chart served merely as a summary of trial testimony that described

members of the conspiracy and their respective relationships. Here, defense counsel

                                              4
objected to the chart going out to the jury, but he never objected to its demonstrative use

in closing argument. This Court has held that the use of summaries and charts is proper.

United States v. Velasquez, 304 F.3d 237, 240 (3d Cir. 2002). Because the chart provided

a summary of testimony and served a strictly demonstrative purpose, and because defense

counsel did not properly object to its use in closing argument, such use of the chart was

not error, plain or otherwise.

         Wilder also argues that his sentence is unreasonable because it far exceeded the

statutory goals of sentencing as articulated in 18 U.S.C. § 3553. We review Wilder’s

sentence for reasonableness under 18 U.S.C. § 3742(a)(1). See United States v. Cooper,

437 F.3d 324, 327-28 (3d Cir. 2006). Wilder has the burden of demonstrating

unreasonableness. Id. at 332. Although a sentence that falls within the guidelines range

is more likely to be considered reasonable, a district judge must, nevertheless,

acknowledge and consider the § 3553(a) factors and any other legally meritorious

sentencing grounds the parties have properly raised. Id. In the case before us, the District

Judge articulated the § 3553(a) factors and clearly considered them. She then explained

that she was persuaded to sentence Wilder within the guideline range because he had

committed an aggravated felony and was in the United States illegally. However, she

sentenced him to the lowest end of the guideline range. Such a sentence was eminently

reasonable.

         For the reasons articulated above, we will affirm the judgment of the District

Court.

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