                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-28-2009

USA v. Cordell Bines
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1389




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 08-1389


                           UNITED STATES OF AMERICA

                                           v.

                            CORDELL MAURICE BINES,

                                                     Appellant



                      On Appeal from United States District Court
                              for the District of New Jersey
                             (D.C. No.:1-07-cr-00714-001)
                       District Judge: Honorable Renee M. Bumb


                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 8, 2009

   Before: CHAGARES and HARDIMAN, Circuit Judges and ELLIS,* District Judge

                                (Filed: January 28, 2009)



                              OPINION OF THE COURT


HARDIMAN, Circuit Judge.



   *
    The Honorable Thomas Selby Ellis, III, Senior District Judge for the United States
District Court for the Eastern District of Virginia, sitting by designation.
       Cordell Bines pleaded guilty to two counts of bank robbery in violation of 18

U.S.C. § 2113(a) and (d) and one count of using and carrying a firearm in violation of 18

U.S.C. § 924(c)(1)(A)(iii) and 2. He appeals his sentence of 288 months imprisonment.

We will affirm.

                                             I.

       Because we write exclusively for the parties, we recount only the facts necessary

to our decision.

       Bines argues that his rights were violated under the Due Process Clause and Rule

32(f)(4)(A)(ii) of the Federal Rules of Criminal Procedure when the District Court

pressured him into speaking in violation of his Fifth Amendment right to remain silent

and then relied on his failure to express remorse in sentencing him at the top of the

Guidelines range.

       Prior to appearing in court for sentencing, Bines submitted a written statement in

which he accepted full responsibility for his crimes and expressed remorse. At the

sentencing hearing, Bines’s counsel requested a mitigated sentence and the following

colloquy ensued:

       COURT:               Mr. Bines, do you wish to address me?

       MR. BINES:           No.

       COURT:               Do you have anything to say, Mr. Bines?

       MR. BINES:           No.

       COURT:               You have nothing to say?

                                             2
       MR. BINES:           I have no idea what’s wrong, but I can’t change – what I say
                            ain’t going to make a difference.

After the government presented its arguments, the District Court rebuked Bines for his

lack of remorse, and concluded that Bines would have “a long time to think about

whether or not [he’s] sorry.” Bines then stated:

       You want me to lie? Say [that] I’m sorry? It’s done, I did it it’s done.
       What, you want me to lie and say I’m sorry. I was sorry but it’s done, I
       can’t change it. You want me to say I’m sorry to her? That’s not goin’ to
       matter to that lady. It’s done, so what can I say? Nothing. But what would
       I said, nothin’ goin’ to change what’s going to happen.

                                            II.

       Bines did not take issue with the District Court’s conduct at the time of sentencing.

Accordingly, we will review his constitutional claim for plain error. United States v.

Olano, 507 U.S. 725, 731 (1993).1

       Our review of the transcript of the sentencing hearing leads to the conclusion that

the District Court committed no error, much less plain error. Federal Rule of Criminal

Procedure 32(i)(4)(A)(ii) required the District Court to give Bines the opportunity to

speak before sentence was imposed and Judge Bumb did just that. The District Court’s

persistent questioning of Bines was reasonable in light of the statement that Bines had



   1
    The Government argues that we should not address the merits of this appeal in light
of the appellate waiver Bines signed. Because Bines has raised a due process challenge to
the conduct of his sentencing hearing, we will bypass that issue and reach the merits. See
United States v. Khattak, 273 F.3d 557, 562 (3d Cir. 2001) (finding that errors concerning
alleged due process violations may amount to a miscarriage of justice and invalidate an
appellate waiver).

                                             3
submitted prior to his sentencing, in which he claimed to regret his actions, expressed

remorse and apologized to the victims.

       In this context, Bines’s unwillingness to answer and his subsequent retort that

whatever he might want to say would make no difference was fairly construed by the

Judge Bumb as a failure to show remorse. Contrary to Bines’s argument, the District

Court did nothing wrong by giving him two additional opportunities to say something on

his own behalf before sentence was imposed. Indeed, we view these questions as prudent

in light of the importance of a criminal defendant’s right of allocution at sentencing.

       We also reject Bines’s argument that the District Court erred in considering his

lack of remorse as a sentencing factor. It is well settled that this is a valid consideration

as a district court fashions a just and proper sentence. See, e.g., United States v. King,

454 F.3d 187, 195 (3d Cir. 2006) (district court did not err in relying on lack of remorse

to impose a sentence that fell above an advisory Guidelines range).

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




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