                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-28-2006

USA v. Lloyd
Precedential or Non-Precedential: Precedential

Docket No. 05-4241




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                                       PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                         No. 05-4241


             UNITED STATES OF AMERICA

                             v.

                       ERIC LLOYD
                            a/k/a
                        Calvin Larue
                            a/k/a
                           Butter

                         Eric Floyd,
                                       Appellant


       On Appeal from the United States District Court
               for the District of Delaware
             (D.C. Crim. No. 02-cr-00141-1)
           Honorable Kent Jordan, District Judge


         Submitted under Third Circuit LAR 34.1(a)
                    November 9, 2006

           BEFORE: SLOVITER, CHAGARES,
            and GREENBERG, Circuit Judges

                (Filed: November 28, 2006)


Peter Goldberger
50 Rittenhouse Place
Ardmore, PA 19003-2276
   Attorney for Appellant


Colm F. Connolly
United States Attorney
Richard G. Andrews
First Assistant U.S. Attorney
1007 N. Orange Street
P.O. Box 2046
Wilmington, DE 19899-2046

   Attorneys for Appellee


                  OPINION OF THE COURT


GREENBERG, Circuit Judge.

                     I. INTRODUCTION

        This matter comes on before the court on Eric Lloyd’s
appeal from a judgment of conviction and sentence entered
August 23, 2005, based on his plea of guilty to a count in a
superseding indictment charging him with conspiracy to possess
with intent to distribute more than 500 grams of cocaine in
violation of 21 U.S.C. § 846. The appeal raises issues limited to
his resentencing after our remand for that purpose in light of
United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005),
pursuant to which the sentencing guidelines now are advisory.
The district court prior to Booker sentenced Lloyd at the bottom
of the applicable sentencing guideline range of 168 to 210
months to a 168-month custodial term to be followed by a 5-year
term of supervised release. After our remand following Booker,
the district court, which did not change its calculation of the
sentencing range, again sentenced Lloyd to an 168-month
custodial term to be followed by a 5-year term of supervised
release.

      The district court had jurisdiction under 18 U.S.C. § 3231
and we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

                                2
§ 3742(a). See United States v. Giaquinto, 441 F.3d 195, 197
(3d Cir. 2006); United States v. Cooper, 437 F.3d 324, 327-28
(3d Cir. 2006). In adjudicating this appeal we recognize that, in
general, a court of appeals gives deference to a district court’s
sentencing determinations and thus reviews sentences on an
abuse of discretion basis. Id. at 330-32. But to the extent that
this appeal involves contentions that the district court made
mistakes of law, our review is plenary. See Gibbs v. Cross, 160
F.3d 962, 964 (3d Cir. 1998). Nevertheless, insofar as Lloyd is
advancing contentions that he did not preserve in the district
court, our review is confined by the exacting plain error
standards. See United States v. Merlino, 349 F.3d 144, 161 (3d
Cir. 2003).

        Lloyd advances three contentions on this appeal. First, he
contends that the district court erred as he regards it as having
established a presumptively correct range of reasonable
sentences based on the sentencing guidelines rather than having
treated the guidelines as being only one of several factors under
18 U.S.C. § 3553(a) for a court to consider before imposing
sentence. Second, he contends that the court failed to offer a
meaningful rationale for concluding that a sentence within the
now advisory guidelines was the least sufficient sentence to
achieve the purposes of punishment. Third, he contends that it
was not reasonable for the court to determine that the sentence it
imposed, though within the guidelines, was the least sentence
sufficient to satisfy the purposes of punishment.



                       II. DISCUSSION

       A. The district court did not place too much
       weight on the advisory sentencing guidelines.

        Lloyd argues that the district court “imposed sentence
under a fundamental misapprehension of the statutory
framework which governs after [Booker].” Appellant’s br. at 10.
In this regard he contends that the court ignored Booker and
instead “announced its own intention to follow the guidelines in
all but unspecified exceptional cases.” Id. at 12. He believes

                                3
that the court was wrong as post-Booker “the guideline range is
but one of numerous factors to be ‘considered,’ and that the Act
plainly states that the range is to be treated as inherently neither
more or less significant than any other factor.” Id. at 13.

       In particular, he takes issue with the district court’s
following statements:

       And if I were to say, as your attorney is
       encouraging me, ‘you know what, under [18
       U.S.C. §] 3553, that feels too harsh to me, I’m just
       not going to pay any attention to that guideline
       range,’ I would be ignoring what the elected
       representatives of the United States citizens have
       strongly encouraged and what I think to be wise
       and good public policy, which is a fair degree of
       predictability and consistency in sentencing across
       the country. . . . So I believe that guideline range
       is the thing that I should be looking to primarily.

Id. at 12;1 app. at 122.

        After our review of the matter we are satisfied that
Lloyd’s select extraction from the district court’s remarks does
not reflect fairly on what the court said. Rather, read as a whole
and in context, these statements take on a different meaning.
Accordingly, we quote them at greater length:

       I don’t feel, as your attorney has said, shackled by
       the guidelines and I’m going to give you the
       sentence I gave you before because the guidelines I
       view as deserving great weight in my
       consideration.

                                ....



       1
       In his brief Lloyd does not quote all of the district court’s
remarks that we set forth at this point but we expand on the quoted
remarks in the brief for purposes of clarity.

                                  4
        . . . I look to the direction of the Federal
Sentencing Guidelines which do represent an effort
by the United States Government to avoid
sentencing disparity across the nation . . . . And if
I were to say, as your attorney is encouraging me,
‘you know what, under [18 U.S.C. §] 3553, that
feels too harsh to me, I’m just not going to pay any
attention to that guideline range,’ I would be
ignoring what the elected representatives of the
United States citizens have strongly encouraged
and what I think to be wise and good public policy,
which is a fair degree of predictability and
consistency in sentencing across the country. So I
don’t view the guidelines as shackling me, I view
them as allowing me to be fair and consistent with
other judges who have the unhappy responsibility
of sentencing.

        So I believe that guideline range is the thing
that I should be looking to primarily. I looked at
the other factors under [section] 3553(a). I’ve
examined them and think that they are not
inconsistent with the sentence that you received. I
won’t go into things that we talked about at the
first sentencing. Suffice it to say that your
criminal history for [a] relatively young man is
significant and clearly played a role here.

        I reject the assertion that the sentence given
to you is out of keeping with what the
codefendants got. On the contrary, for each of
your codefendants, as with you, I paid careful
attention to what the criminal history and the
offense level was and sentenced them as I thought
appropriate in light of all the factors that were in
play in each of their cases.

                         ....

      The Court has considered the defendant’s
arguments regarding sentencing and has

                          5
       considered [the] United States Supreme Court’s
       decision in Booker which ruled [the] sentencing
       guidelines are now advisory. The Court also
       believes the sentence which is within the advisory
       guidelines range . . . meets the sentencing goals
       outlined in Title 18, United States Code, Section
       3553.

App. at 121-25.2

        Whether we consider the district court’s view of the role
of the sentencing guidelines from a plenary approach or under an
abuse of discretion standard, we cannot say that the court erred
in applying Booker. In fact, the court’s remarks are entirely
consistent with our opinion in Cooper in which we discussed the
function of the sentencing judge after Booker and, in particular,
the role of the guidelines in relation to the other 18 U.S.C. §
3553(a) sentencing factors. In Cooper we held that the district
court must give “meaningful consideration” to the section
3553(a) factors,3 but the court need not “discuss and make

       2
         There were two other defendants in this case, Albari Malik
Johnson, who pleaded not guilty and was convicted of conspiracy to
possess with intent to distribute an unspecified amount of cocaine, and
Ernest Morris, who pleaded guilty to offenses arising out of the
conspiracy. The court imposed a below-guideline custodial sentence of
180 months to be followed by a 10-year term of supervised release on
Morris pursuant to a government substantial-assistance motion. The
court sentenced Johnson, who had a criminal history category of I and
had a less significant role in the conspiracy than Lloyd, to a 121-month
custodial term to be followed by a 3-year term of supervised release.
       3
               The section 3553(a) factors are:

       (1) the nature and circumstances of the offense and the
       history and characteristics of the defendant;

       (2) the need for the sentence imposed–

               (A) to reflect the seriousness of the
               offense, to promote respect for the law,
               and to provide just punishment for the

                                   6
findings of each of the § 3553(a) factors if the record makes
clear the court took the factors into account in sentencing.” Id.
at 329. As to the function of the guidelines, in Cooper we stated:

       The advisory guidelines range is itself one of the §
       3553(a) factors, 18 U.S.C. § 3553(a)(4), and
       continues to play an integral part in sentencing
       decisions. In Booker, the Court explicitly directed
       district courts to continue to ‘take account of the
       Guidelines together with other sentencing goals.
       The Guidelines remain an essential tool in creating


              offense;

              (B) to afford adequate deterrence to
              criminal conduct;

              (C) to protect the public from further
              crimes of the defendant; and

              (D) to provide the defendant with needed
              educational and vocational training,
              medical care, or other correctional
              treatment in the most effective manner;

       (3) the kinds of sentences available;

       (4) the kinds of sentence and the sentencing range
       established for . . . the applicable category of offense
       committed by the applicable category of defendants as
       set forth in the guidelines . . . ;

       (5) any pertinent policy statement issued by the Sentencing
       Commission;

       (6) the need to avoid unwarranted sentence disparities
       among defendants with similar records who have been
       found guilty of similar conduct; and

       (7) the need to provide restitution to any victims of the
       offense.


                                  7
       a fair and uniform sentencing regime across the
       country,’ and provide a natural starting point for
       the determination of the appropriate level of
       punishment for criminal conduct. The § 3553(a)
       factors were intended to guide the Sentencing
       Commission in its formulation of sentencing
       guidelines.

Id. at 331 (citations and footnotes omitted).

        The district court’s remarks at sentencing in this case
were consistent with our holding in Cooper. In this case the
court relied on the guidelines as “a natural starting point” and
gave “meaningful consideration” to the other section 3553(a)
factors. In particular, the court at the resentencing considered
more factors than the guidelines in crafting Lloyd’s sentence as
it also took into account the other section 3553(a) considerations
including his lengthy criminal history, the sentences of the other
defendants, and the need to avoid sentencing disparities among
defendants with similar records found guilty of similar
misconduct. In this exercise, it did not abuse its discretion.

        Lloyd also argues that the district court erred in failing to
consider his post-sentence rehabilitation efforts. But his attorney
in the district court did not object at sentencing to the court’s
approach with respect to his post-sentence rehabilitation efforts
and, thus, we could grant relief by reason of the district court’s
treatment of those efforts only if we found plain error.

       U.S.S.G. § 5K2.19 (Policy Statement) states, “Post-
sentencing rehabilitative efforts, even if exceptional, undertaken
by a defendant after imposition of a term of imprisonment for the
instant offense are not an appropriate basis for a downward
departure when resentencing the defendant for that offense.”
Under Booker, it is entirely appropriate for a court to consider
pertinent policy statements. See 18 U.S.C. § 3553(a)(5). Lloyd
nevertheless contends that section 5K2.19 no longer has
prohibitive force so that, in this case, the district court should
have given more consideration than it did to his post-sentencing
rehabilitation efforts. In this regard the court stated,


                                 8
      I have one final comment for you, Mr. Lloyd. I
      have listened carefully and paid attention to
      information provided to me by your attorney about
      your postconviction rehabilitative efforts. It’s true
      that the sentencing guidelines direct me not to
      make that a factor in reducing the sentence that
      you’re going to face but I hope you continue on the
      path you have chosen. Regardless of what I say or
      anybody else says or does, your life is your own,
      sir, and you do yourself the most good by
      continuing on in your effort to make the most of
      your opportunities.

App. at 126-27.

       We see no plain error or indeed any error at law in what
the court did. Though section 5K2.19, as part of the guidelines
as a whole, is now advisory, nevertheless it would be an unusual
case in which a defendant’s post-sentence rehabilitation efforts
following a Booker remand should impact on the sentence.
After all, by definition those circumstances did not exist at the
time of the original sentence. In United States v. Worley, 453
F.3d 706 (6th Cir. 2006), the Court of Appeals for the Sixth
Circuit looked at this specific issue and held:

      [I]n a Booker remand . . . the conduct or
      circumstances that bear on the § 3553(a) factors
      must have been in existence at the time the original
      sentence was imposed. In [the case under review],
      the § 3553(a) factors raised by the defendants all
      involved matters occurring after the date of
      sentencing. The goal of the [Booker] remand is to
      determine if, at the time of sentencing, the district
      judge would have imposed a different sentence in the
      absence of mandatory guidelines. Post-sentencing
      events or conduct simply are not relevant to that
      inquiry.

Id. at 709 (quoting United States v. Re, 419 F.3d 582, 584 (7th
Cir. 2005)). Both the Courts of Appeals for the Sixth and
Seventh Circuits have concluded that “given the limited nature

                                9
of the remand, the defendant’s post-sentencing efforts while
incarcerated were not relevant . . . .” Worley, 453 F.3d at 709;
see also Re, 419 F.3d at 583-84.

       We essentially agree with these courts, though we would
not hold that a court never could consider a defendant’s post-
sentencing rehabilitation efforts when resentencing. In this
regard we point out that Booker surely impacted on the
mandatory nature of section 5K2.19, even though it has not
changed the usual practical impact of that section at a Booker
resentencing. Yet our opening for consideration of post-
sentencing rehabilitation efforts is narrow for we reiterate our
view that a court, except in unusual cases, should consider only
conduct and circumstances in existence at the time of the
original sentencing when it resentences following a Booker
remand. After all, an approach permitting a defendant’s post-
sentencing rehabilitation efforts to impact on a resentence
“would unfairly disadvantage defendants who were ineligible for
re-sentencing and therefore had no opportunity to bring their
rehabilitative efforts before the sentencing court.” United States
v. Hertzog, 186 Fed. Appx. 314, 317 (3d Cir. 2006).4 In this
case we are unaware of any circumstance that could satisfy the
exacting standard that we have set to justify a court in
considering post-sentencing rehabilitation efforts following a
Booker resentencing.5



       4
         We realize that Hertzog was a not precedential opinion but we
quote that opinion because we are adopting its language as our own
rather than as a precedent. In fact, in Hertzog we used the language we
now quote in characterizing the district court’s remarks at the
resentencing. Significantly, the district court in Hertzog recognized that
it had discretion to grant a departure for the defendant’s post-sentencing
rehabilitation efforts, an approach with which we agree though it should
exercise its discretion to consider post-sentencing rehabilitation efforts
sparingly.
       5
         We do not address the propriety of considering post-sentencing
rehabilitation efforts at a resentencing other than in a Booker context,
though we observe that section 5K2.19 by its terms is not confined to
Booker resentencings.

                                   10
       B. The district court gave sufficient reasons for
       not sentencing Lloyd below the guideline range.

        Under 18 U.S.C. § 3553(c)(1), a district court is obligated
to state in open court “the reasons for imposing a sentence at a
particular point within [a guidelines sentencing] range”
exceeding 24 months. That section obligates a district court to
“give concrete reasons” for its sentence. United States v.
Gricco, 277 F.3d 339, 363 (3d Cir. 2002).

        Prior to Booker, we held that a court’s failure to comply
with this requirement was harmless if it sentenced the defendant
at the bottom of the guidelines range as the defendant received
the lightest possible sentence, absent a departure. Id. at 363
n.15. Lloyd contends that now that the guidelines are merely
advisory, a sentence at the bottom of the range is not the least
possible sentence and, accordingly, a court’s failure to comply
with section 3553(c)(1) is not harmless. Therefore, Lloyd argues
that the district court must comply with the requirement to state
its reasoning in all sentencings where the guidelines range
exceeds 24 months, even in cases where the sentence is at the
bottom of the guidelines range. Lloyd did not advance this
contention in the district court.

        Even assuming that Lloyd is correct that a violation of
section 3553(c)(1) is no longer necessarily harmless if the court
sentences the defendant at the bottom of the guidelines range, in
this case the court was in compliance with any requirement, if
there was one, that it state its reasoning for imposing the
sentence at a particular point within the applicable range and the
fact that it did not give a fuller explanation certainly could not
rise to the level of plain error or, indeed, any error at all.6 In
reaching this conclusion we recognize that, of course, it is

       6
         We have explained the application of the plain error standard as
follows: “Thus, for this Court to grant the relief the defendant[] seek[s],
the District Court must have committed plain error that prejudiced them.
Even where error and prejudice are found, we will only exercise our
discretion to correct the error if it ‘seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.’” Merlino, 349
F.3d at 161 (citations omitted).

                                    11
always possible for a court to say more at a sentencing than it
does. Yet a court can provide “concrete reasons” for its sentence
without speaking at great length and the court did so here. After
all, among other things, it stated that Lloyd’s “criminal history
for [a] relatively young man is significant and clearly played a
role here,” and observed that the sentence was in proportion to
the sentences of the two co-defendants. App. at 123. Moreover,
the court referred to the original sentencing, in which it said:

              I want to make it clear that I don’t believe
       that you’re simply a misguided youth at this point
       in your life. You appear, from the evidence that
       I’ve seen, to be a sophisticated businessman . . . ,
       but who has chosen as his stock and trade the
       poison of drugs, which are a curse on society and
       which, in supreme irony, inflict upon others the
       very circumstances that have been so terribly
       detrimental in your own life.

              That’s not lost on me at all. And the poison
       that you were instrumental in bringing into this
       community may very well be – indeed, it’s almost
       certain to be producing another boy whose mother
       or father will die early, who will beat and abuse
       them because of drug abuse, and who will, in turn,
       have their life wrecked.

App. at 5-6. Plainly the court satisfied its obligation to provide
“concrete reasons” for the sentence, which included Lloyd’s
criminal record, the co-defendants’ sentences, and the danger of
Lloyd’s crime to society. Indeed, we believe that ordinarily a
court when fully explaining its sentence will satisfy section
3553(c)(1) even without mentioning that section. In the
circumstances, we repeat that the court did not commit plain
error or any error at all under section 3553(c)(1).7

       7
         Lloyd’s positions on this appeal seem to be inconsistent. First
he argues that the guidelines are merely one factor among numerous
considerations of equal weight in the sentence. Then he contends that
section 3553(c)(1) has an enhanced significance after Booker, though it
might be expected that his contention on the second point in view of his

                                  12
                  C. The sentence was reasonable.

       Lloyd argues that the 168-month sentence, though at the
bottom of the guidelines range, was unreasonable because it was
greater than necessary to accomplish the goals of criminal
punishment and a lesser penalty would have been sufficient. He
argues that the sentence was unreasonable because: he was only
26 years old at the time of resentencing; he has three children; he
did not know his father; his mother was a drug addict who died
when he was 17; he accumulated nine criminal history points by
age 18; he left high school after the tenth grade; he was a drug
abuser; he made significant efforts at self-improvement while in
prison; and he has loving friends and family. Lloyd asserts that
“[a]ny ‘reasonable’ sentencing decision would have to take into
account these objective indicators of a substantial need for and
likelihood to benefit from rehabilitation, following a rocky start
in very difficult circumstances.” Appellant’s br. at 34-35.

       In Booker “the Supreme Court directed appellate courts to
review sentences for reasonableness . . . . ” Cooper, 437 F.3d at
326. In Cooper we described the sentencing court’s obligations
and the contours of an appellate court’s review:

               To determine if the court acted reasonably
       in imposing the resulting sentence, we must first
       be satisfied the court exercised its discretion by
       considering the relevant [§ 3553(a)] factors . . . .
       The record must demonstrate the trial court gave
       meaningful consideration to the § 3553(a) factors.
       The court need not discuss every argument made
       by a litigant if an argument is clearly without
       merit. Nor must a court discuss and make findings
       of each of the § 3553(a) factors if the record makes
       clear the court took the factors into account in
       sentencing . . . .

                                  ....




first point should be exactly contrary to the one he takes.

                                   13
       In addition to ensuring a trial court
considered the § 3553(a) factors, we must also
ascertain whether those factors were reasonably
applied to the circumstances of the case. In doing
so, we apply a deferential standard, the trial court
being in the best position to determine the
appropriate sentence in light of the particular
circumstances of the case. Under such
circumstances, deference should be given. As the
Court of Appeals for the Seventh Circuit recently
held,

       [t]he question is not how we
       ourselves would have resolved the
       factors identified as relevant by
       section 3553(a) . . . nor what
       sentence we ourselves ultimately
       might have decided to impose on the
       defendant. We are not sentencing
       judges. Rather, what we must decide
       is whether the district judge imposed
       the sentence he or she did for reasons
       that are logical and consistent with
       the factors set forth in section
       3553(a).

       While we review for reasonableness
whether a sentence lies within or outside the
applicable guidelines range, it is less likely that a
within-guidelines sentence, as opposed to an
outside-guidelines sentence, will be unreasonable .
...

        Although a within-guidelines range
sentence is more likely to be reasonable than one
that lies outside the advisory guidelines range, a
within-guidelines range is not necessarily
reasonable per se. Otherwise, as several Courts of
Appeals have concluded, we would come close to
restoring the mandatory nature of the guidelines
excised in Booker. Nor do we find it necessary . . .

                         14
       to adopt a rebuttable presumption of reasonable for
       within-guidelines sentences . . . .

              To sum up, appellants have the burden of
       demonstrating unreasonableness. A sentence that
       falls within the guidelines range is more likely to
       be reasonable than one outside the guidelines
       range. There are no magic words that a district
       judge must invoke when sentencing, but the record
       should demonstrate that the court considered the §
       3553(a) factors and any sentencing grounds
       properly raised by the parties which have
       recognized legal merit and factual support in the
       record.

Id. at 329-32 (citations and footnotes omitted).

        Lloyd has not satisfied his burden of proving that the 168-
month sentence followed by a 5-year term of supervised release
was unreasonable. The sentence was at the bottom of the
guideline range and thus, in the words of Cooper, was “more
likely to be reasonable that one outside the guidelines range.”
The court gave “meaningful consideration” to the relevant
section 3553(a) factors and “reasonably applied the factors to the
circumstances of the case.” See United States v. Charles, No.
05-5326,       F.3d , 2006 WL 3231396, at * 2 (3d Cir. Nov. 9,
2006). Though the court considered Lloyd’s life circumstances
which he contends should have mitigated the sentence, the fact is
that there is no denying Lloyd was involved in criminal conduct
involving a substantial quantity of cocaine.8 He has been living
the life of a criminal since age 17, having been convicted of
numerous felonies and other offenses.




       8
         Arguably Lloyd’s criminal history suggests that a longer rather
than shorter sentence than otherwise might have been appropriate should
have been imposed. That view of a substantial criminal history surely
is the more conventional approach than that which Lloyd takes. After
all, under the sentencing guidelines the more aggravated a defendant’s
criminal history, the higher his sentencing range is likely to be.

                                  15
                     III. CONCLUSION

       For the foregoing reason the judgment of conviction and
sentence entered August 23, 2005, will be affirmed.




                              16
