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


2-9-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-5172




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                                                                   NOT PRECEDENTIAL

                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      NO. 06-5172


                           UNITED STATES OF AMERICA
                                       v.
                                JAMES MADISON
                                    Appellant


                          On Appeal From the United States
                                     District Court
                        For the Eastern District of Pennsylvania
                         (D.C. Crim. Action No. 06-cr-00390)
                         District Judge: Hon. Juan R. Sanchez


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   February 3, 2009

                 BEFORE: McKEE and STAPLETON, Circuit Judges,
                          and IRENAS,* District Judge

                             Opinion Filed: February 9, 2009




                              OPINION OF THE COURT




*Hon. Joseph E. Irenas, Senior United States District Judge for the District of New
Jersey, sitting by designation.
STAPLETON, Circuit Judge:

       Appellant James Madison pled guilty to one count of bank fraud pursuant to a plea

agreement. The Probation Office properly calculated his advisory Sentencing Guidelines

range to be 37-46 months. At the close of the sentencing hearing, the District Court

sentenced Madison to a term of imprisonment of 60 months to commence after service of

a state sentence he was serving for a different crime.

       In this appeal, Madison urges that the District Court erred as a matter of law by (1)

“departing upward” from the Guidelines range; (2) failing to provide advance notice of its

intent to so depart; and (3) denying his request to have his federal sentence run

concurrently with his state one. We consider each in turn and will affirm.

                                             I.

       The District Court followed the applicable precedent. It properly calculated the

applicable Guidelines range, recognized them as advisory, considered each of the §

3553(a) factors, and decided upon a sentence that it expressly found to be “sufficient but

not greater than necessary to reflect the seriousness of the offense, deter criminal conduct,

protect the public from [the defendant’s] conduct and provide [him] with an opportunity

for rehabilitation.” App. at 57. The Court also explained on the record how it reached its

decision, as well as why it was unpersuaded by the arguments it did not accept.

       There was no departure under the Sentencing Guidelines. Rather, the District

Court exercised its discretion to vary from the advisory range based upon § 3553(a)



                                              2
factors. As the Court explained, it was concerned about the fact that Madison was 57

years old, had a thirty-year criminal record including 10 prior convictions, and had not

been at all deterred by the punishments previously imposed. Moreover, the Court

explained that it was concerned about the nature and seriousness, as well as the frequency

of Madison’s offenses, stressing not only the duration and extent of the fraud, but also the

harmful impact on the victims of his use of stolen identification and personal information.

In short, it is apparent from the record that what Madison refers to as the “unassociated

concerns” giving rise to the appropriate upward variance were precisely the concerns on

which § 3553(a) required the Court to focus. Given that there was ample and reliable

evidence to support those concerns, we find the District Court’s variance to be well

within its discretion.

                                             II.

       Madison insists that the failure of the Court to provide advance notice of an intent

to impose a sentence above the applicable Guidelines range violated Fed. R. Crim. P. 32.

Such notice is not required, however, in advance of discretionary variances based on §

3553(a) factors. Irizarry v. United States, 128 S. Ct. 2198, 2208 (2008).

                                            III.

       Under 18 U.S.C. § 3584, multiple terms of imprisonment may be imposed either

consecutively or concurrently, and the District Court must consider the § 3553(a) factors

in making this determination. Similarly the policy statement in U.S.S.G. § 5G1.3(c)



                                             3
provides that a sentence may be imposed concurrently, partially concurrently, or

consecutively to an undischarged sentence in order “to achieve a reasonable punishment

for the instant offense.” This decision is entrusted to the sound discretion of the District

Court. United States v. Lloyd, 469 F.3d 319, 321 (3d Cir. 2006); United States v.

Saintville, 218 F.3d 246, 249 (3d Cir. 2000).

       The District Court here made explicit reference to Guidelines § 5G1.3(c), thus

recognizing its discretion to impose a consecutive or a concurrent sentence. While it did

not expressly tie its decision on that matter to a separate statement of rationale, it is

crystal clear from reading the record that its decision in favor of a consecutive sentence

was based on the same § 3553(a) factors that caused it to sentence above the Guidelines

range – Madison’s criminal history and recidivism, the nature and seriousness of the

offense, and the need for deterrence and punishment. Once again, we find no abuse of

discretion.1

                                              IV.

       The judgment of the District Court will be affirmed.




   1
    Madison insists for the first time before us that his state conviction was based on
“relevant conduct” under § 7B1.3 and should have been ordered to run concurrently under
§ 5G1.3(b). However, the record provides no basis for this contention and the
presentence report reflects that the state conviction was not treated as a related case or
relevant conduct in the calculation of the Guidelines range.

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