                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 09-3359
                                    _____________

                           UNITED STATES OF AMERICA

                                           v.

                                 WILLIAM FRAZIER,
                                  also known as Bilal
                             also known as Trayvon Scott,

                                    William Frazier,
                                       Appellant
                                    _____________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                            (D.C. No. 2-08-cr-00179-005)
                        District Judge: Hon. Paul S. Diamond

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   February 6, 2012

            Before: SLOVITER, VANASKIE, and GARTH, Circuit Judges.

                               (Filed: February 22, 2012)
                                     ____________

                                       OPINION
                                     ____________

GARTH, Circuit Judge

      After a jury trial, Appellant William Frazier was convicted of thirty counts of bank

fraud and aiding and abetting. The District Court imposed a sentence of ninety-six


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months, and Frazier now appeals. For the reasons that follow, we will affirm Frazier’s

conviction and sentence.

                                              I.

       We write principally for the benefit of the parties and recite only the facts essential

to our disposition.

       Four individuals who all pled guilty to bank fraud testified in a jury trial that

Frazier operated a check cashing scheme involving each of them. According to their

testimony, Frazier would provide them with counterfeit checks, drive the others to banks

to cash them, and then divide the proceeds from cashing the fraudulent checks. On some

occasions, when Frazier drove the witnesses to the bank, another individual, identified as

“Tone,” would also be in the car, along with maps of bank locations. The witnesses also

testified that Frazier took their personal information, which he used to ensure that the

information on the checks would match the witnesses’ identification. On the basis of this

testimony, the jury convicted Frazier of 30 counts of bank fraud and aiding and abetting

in violation of 18 U.S.C. § 1344 and 18 U.S.C. § 2.

       On July 30, 2009, the District Court held a sentencing hearing. The District Court

assessed a four-level enhancement under Sentencing Guideline 3B1.1(a) for Frazier’s

role as “an organizer or leader of a criminal activity that involved five or more

participants” and a three-point enhancement under Sentencing Guideline 4A1.2 for

Frazier having been sentenced to a term “of imprisonment exceeding one year and one

month . . . within fifteen years of [Frazier’s] commencement of the instant offense.” The

District Court concluded that Frazier’s offense level was seventeen and that his offender

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score was VI. Under that level and score, the guideline sentence range was fifty-one to

sixty-three months. Having previously given proper notice that an upward variance

might be considered, the Court imposed a sentence of ninety-six months, with that

sentence being imposed concurrently on each of the 30 counts for which Frazier was

convicted. Frazier was also fined $40,000, subjected to a special assessment of $3,000,

and ordered to pay $32,241.34 in restitution. Frazier timely appealed.

                                             II.

       We have jurisdiction over Frazier’s appeal of his conviction pursuant to 28 U.S.C.

§ 1291, and jurisdiction over his appeal of his sentence pursuant to 18 U.S.C. § 3742. In

considering a claim of insufficient evidence to support a conviction, “the relevant

question is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).

       Our review of a District Court’s decisions pertaining to adjustments under the

Sentencing Guidelines depends on the nature of the District Court’s decisions. “Where

the decision is grounded on an essentially factual basis, we defer to the district court’s

findings and reverse only for clear error. However, if the alleged error is legal, the issue

should be reviewed de novo.” U.S. v. Bierley, 922 F.2d 1061, 1064 (3d Cir. 1990).

       We review “the procedural and substantive reasonableness of a district court’s

sentence . . . for abuse of discretion.” United States v. Young, 634 F.3d 233, 237 (3d Cir.

2011) (quoting U.S. v. Doe, 617 F.3d 766, 769 (3d Cir. 2010)). For a sentence to be

procedurally reasonable, “the sentencing court must give rational and meaningful

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consideration to the relevant § 3553(a) factors.” Id. Further, a sentence is procedurally

unreasonable if the sentencing authority fails “to adequately explain the chosen sentence -

including an explanation for any deviation from the Guidelines range.” Gall v. U.S., 552

U.S. 38, 51 (2007). “Substantive reasonableness inquires into whether the final sentence,

wherever it may lie within the permissible statutory range, was premised upon

appropriate and judicious consideration of the relevant factors.” Young, supra, 634 F.3d

at 237.

                                               III.

          On appeal, Frazier claims that: 1) the evidence introduced at trial was insufficient

to sustain his conviction; 2) he is entitled to a remand for a new sentencing hearing on the

basis of the District Court’s four-level enhancement under Sentencing Guideline

3B1.1(a); and 3) his sentence was unreasonable. We will address each of these

contentions in turn.

          Frazier first contends that there was insufficient evidence to sustain his conviction.

Specifically, Frazier argues that the witnesses who constituted the crux of the

government’s case all had self-serving reasons to testify, as they were all themselves

involved in the criminal enterprise. Frazier therefore argues that their testimony is

unreliable, especially insofar as it was uncorroborated by external evidence. We

disagree. This court has expressly stated that “uncorroborated accomplice testimony may

constitutionally provide the exclusive basis for a criminal conviction.” United States v.

De LaRosa, 450 F.2d 1057, 1060 (3d Cir. 1971). Where, as here, the testimony of the

accomplices was, if credited, sufficient to establish the defendant’s guilt, we conclude

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that a “rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, supra, 443 U.S. at 319. Accordingly, Frazier’s

conviction was supported by sufficient evidence, and should be affirmed.

       Frazier next claims that he is entitled to a new sentencing hearing because the

District Court improperly imposed a four-level sentencing enhancement on the basis of

his status as a “leader of a criminal activity that involved five or more participants.”

Frazier argues that Tone should not be counted as a “participant” in the criminal activity

for which Frazier was convicted. Assuming that Tone does not qualify as a participant,

Frazier argues, the criminal activity involved only the four witnesses and Frazier himself.

Frazier claims that the District Court improperly included Frazier when counting the

participants in the criminal activity, and that if he were not included, there would only be

four participants, rendering the application of Sentencing Guideline 3B1.1(a) improper. 1

       Frazier acknowledges, however, that our decision in United States v. Colletti, 984

F.2d 1339, 1346 (3d Cir. 1992), held that a defendant himself could count as a participant

for Guideline 3B1.1(a) purposes. He therefore invites us to overturn our prior decision in

Colletti. We decline to do so. Pursuant to our Internal Operating Procedure 9.1, “[i]t is

the tradition of this court that the holding of a panel in a precedential opinion is binding

on subsequent panels. Thus no subsequent panel overrules the holding in a precedential

opinion of a previous panel.” There is no reason for us to revisit Colletti, and we


1
  Sentencing Guideline 3B1.1 provides, in relevant part: “Based on the defendant’s role
in the offense, increase the offense level as follows: (a) If the defendant was an organizer
or leader of a criminal activity that involved five or more participants or was otherwise
extensive, increase by 4 levels.”
                                              5
therefore conclude that the District Court properly counted Frazier as a participant and

properly imposed a four-level enhancement under Sentencing Guideline 3B1.1(a).

       Frazier’s final claim is that his sentence was unreasonable. Specifically, he claims

that the District Court erred in granting the government’s request for an upward variance

from the guideline sentence range, and further claims that the sentence was unreasonable

“under all of the circumstances.”

       Frazier first contends that the District Court’s upward variance from the guideline

sentence range was premised on the District Court’s improper consideration of the fact

that Frazier had six children and the fact that Frazier chose to proceed to trial.

       Frazier’s contention that the District Court penalized him for the number of his

children is unsupported by the record. While the District Court did mention at sentencing

that Frazier was the father of six children, there is no indication that the District Court

considered this fact as a strike against him. On the face of the record, it is equally

plausible that the District Court mentioned Frazier’s children because of concern over the

effect lengthy incarceration would have on them. In any event, there is nothing in the

record to support an inference that the District Court considered the number of Frazier’s

children in granting an upward variance.

       Frazier’s claim that he was penalized for choosing to go to trial is equally without

merit. The comments upon which this claim is premised concern Frazier’s own

statements disputing his guilt at the time of sentencing. A “sentencing judge properly

may consider the defendant’s amenability to rehabilitation and expressions of remorse for

the crime committed when the judge selects an appropriate sentence.” United States v.

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Rosenberg, 806 F.2d 1169, 1179 (3d Cir. 1986). It was therefore proper for the District

Court to consider Frazier’s own statements disputing his guilt. The upward variance was

plainly based on appropriate factors under 18 U.S.C. § 3553 (a), and there is no reason to

believe that the District Court considered any additional impermissible factors.

       Having concluded that the upward variance was procedurally reasonable, we now

turn to Frazier’s claim that his sentence “was unreasonable under all of the

circumstances.” We view this as a claim that his sentence was substantively

unreasonable. Frazier does not allege any specific unreasonableness. Instead, he simply

observes that his sentence was significantly greater than the guidelines range, and

suggests that such a lengthy sentence is retributive.

       “[I]t is not the role of an appellate court to substitute its judgment for that of the

sentencing court as to the appropriateness of a particular sentence.” Solm v. Helm, 463

U.S. 277, 290 n. 16 (1983). In reaching its final sentence, the District Court considered

Frazier’s lengthy criminal history, repeated violations of probation and parole, threats to

witnesses, refusal to cooperate with his probation officer, and lack of rehabilitation from

previous sentences. On such a record, we cannot conclude that “no reasonable

sentencing court would have imposed the same sentence on [Frazier] for the reasons the

district court provided.” U.S. v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009). We will

affirm Frazier’s sentence.

                                              IV.




                                               7
      Because we conclude that Frazier’s conviction was supported by sufficient

evidence, that his offense level was properly determined, and that his sentence was not

unreasonable, we will affirm his conviction and sentence.




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