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


6-9-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2980




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"USA v. Sparks" (2006). 2006 Decisions. Paper 926.
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                                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-2980


                           UNITED STATES OF AMERICA

                                           v.

                                  JESSE L. SPARKS,

                                                             Appellant


                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                              (D.C. Crim. No. 03-00364-1)
                       Honorable Malcolm Muir, District Judge


                       Submitted under Third Circuit LAR 34.1(a)
                                     June 1, 2006

          BEFORE: AMBRO, FUENTES, and GREENBERG, Circuit Judges,

                                  (Filed: June 9, 2006)


                              OPINION OF THE COURT


GREENBERG, Circuit Judge.

      This matter comes on before the court on Jesse L. Sparks’ appeal from a sentence

the district court imposed on him after the Supreme Court decided United States v.

Booker, 543 U.S. 220, 125 S.Ct. 738 (2005). Sparks, while a prisoner at FCI-Allenwood,
    on October 15, 2002, assaulted Rico Woodland, another prisoner at FCI-Allenwood,

    resulting in Woodland suffering massive injuries. Although the grand jury returned a

    five-count indictment against Sparks, ultimately on August 20, 2004, he pleaded guilty

    pursuant to a written agreement to a single count of assault resulting in serious bodily

    injury in violation of 18 U.S.C. § 113(a)(6). A significant provision of the plea

    agreement provided that the government reserved “the right to recommend a sentence up

    to and including the maximum sentence of imprisonment and fine allowable.”

           Following his guilty plea, the probation department prepared a presentence report

    which, as revised, calculated a guideline range of 46 to 57 months. As it happened,

    however, the Supreme Court decided Booker on January 12, 2005, before the district

    court sentenced Sparks. Clearly, the district court considered that the proposed guideline

    range was too low as on January 14, 2005, it entered an order taking note of Booker and

    indicating that it had discretion to deviate from what, under Booker, had become an

    “advisory” guideline range. Thus, the court in its order advised Sparks that it was

    considering imposing a sentence “substantially” above the guideline range but was giving

    him an opportunity to file a motion to withdraw his plea of guilty.

           After the court entered its January 14, 2005 order, Sparks knew from the plea

    agreement and the January 14, 2005 order that the government could recommend that the

    court impose the maximum sentence allowed by law,1 the guidelines had become


       1
1       He does not contend that the court imposed a sentence that exceeded that maximum
2   sentence allowed by law.
                                                 2
advisory, and the court was considering imposing a sentence substantially above the

guideline range. Nevertheless, Sparks did not seek to withdraw his guilty plea. The court

further emphasized the possibility that it would sentence Sparks to a sentence in excess of

the range set forth in the presentence report when on February 22, 2005, it directed the

government to file a motion for an upward departure from the proposed guideline range in

the presentence report. The government subsequently filed that motion and, though

Sparks filed a brief in opposition to the motion for the upward departure, he did not seek

to withdraw his guilty plea. On May 19, 2005, the court increased Spark’s guideline

range to 70 to 87 months predicated on a 4-level upward departure. Then, on June 3,

2005, the court sentenced Sparks to a ten-year term of imprisonment to run consecutively

to the sentence he then was serving to be followed by a three-year period of supervised

release.

       Sparks’ appeal raises the following issues:

       The district court erred in imposing a sentence above the advisory
       guidelines based on Booker, because [the sentence] violates the ex post
       facto clause of the United States Constitution.

       The district court erred in imposing a sentence above the advisory
       guideline, because the factors upon which the upward departure was based
       were already adequately considered by the sentence commission and such
       upward departure constituted double counting.

Appellant’s br. at 2.

       We reject Sparks’ ex post facto argument as our opinion in United States v.

Pennavaria, 445 F.3d 720 (3d Cir. 2006), forecloses it. In Pennavaria we explained that


                                             3
the Supreme Court in Booker said that that case applied to all cases then on direct review.

Id. at 723. Accordingly, it logically follows that Booker must apply in this case in which

the district court imposed the sentence after the Court decided Booker. Thus, we cannot

find that there is an ex post facto violation in this case unless we disregard Booker, a step

we will not take.

       We also reject Spark’s second argument. In light of the brutal beating that Sparks

inflicted on Woodland and Woodland’s terrible injuries, the district court was justified in

concluding that the proposed 46 to 57-month sentencing range was unreasonably low.

Overall, it is clear that the court was fully justified in imposing the sentence it did.

       The judgment of conviction and sentence entered June 3, 2005, will be affirmed.




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