                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                        09-4357
                                    _______________

                            UNITED STATES OF AMERICA

                                            v.

                                       JOHN DOE,

                                                 Appellant

                                    _______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                        (D.C. Criminal No. 2-09-cr-00397-001)
                        District Judge: Hon. R. Barclay Surrick
                                   _______________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  November 9, 2010

      BEFORE: MCKEE, Chief Judge, SLOVITER and COWEN , Circuit Judges

                                 (Filed: January 5, 2011)
                                    _______________

                                       OPINION
                                    _______________

COWEN, Circuit Judge.

       John Doe appeals from the criminal judgment entered by the United States District

Court for the Eastern District of Pennsylvania, asserting that his sentence was
procedurally unreasonable. We will affirm.

                                             I.

       On February 24, 1999, Doe, a native and citizen of Jamaica, unsuccessfully

attempted to enter the United States using a fraudulently obtained visa issued under a

false name. He was immediately deported to Jamaica on the very next day. Using a

fraudulent Jamaican passport issued under another false name, Doe reentered the United

States on August 23, 2003. He was eventually convicted in the United States District

Court for the Eastern District of Pennsylvania on charges of illegal reentry after

deportation, making false claims of citizenship as well as false statements to law

enforcement officers, unlawful possession of a firearm by an illegal alien, and possession

of marijuana with intent to distribute. On November 15, 2004, the District Court

sentenced Doe to a term of imprisonment of 35 months followed by a period of

supervised release. He was then deported on February 22, 2007.

       Doe subsequently returned to the United States. After the Pennsylvania

Department of Transportation reissued a driver’s license to Doe under yet another false

name, he was eventually arrested and charged with one count of illegal reentry in

violation of 8 U.S.C. § 1326(a) and (b)(2). Doe pled guilty on August 3, 2009.

       In computing the sentencing range under the Sentencing Guidelines, the probation

officer applied U.S.S.G. § 2L1.2(b)(1)(A)(i). This provision requires that the offense

level “be increased by 16 levels since the defendant was previously deported after

sustaining a conviction for a felony that was a drug trafficking offense for which the


                                             2
imposed sentence exceeded 13 months.” (PSR ¶ 21.) Doe’s base offense level

accordingly went from 8 to 24. He also received credit for accepting responsibility,

lowering his offense level by 3. The probation officer’s calculation ultimately yielded an

adjusted offense level of 21. Given a Category III criminal history, the resulting

Guideline range was 46 to 57 months.

       According to Doe, the Guideline range, in the absence of “the 16-level

enhancement,” would have been only 2 to 8 months. (Appellant’s Brief at 7.)

Alternatively, “[i]f the marijuana offense had been treated as an ‘aggravated felony’ . . .

the sentencing range would have been 18 to 24 months.” (Id.)

       Both the prosecution and the defense submitted sentencing memoranda to the

District Court. In his 15-page memorandum, Doe asked the District Court to impose a

sentence below the probation officer’s calculated range for a number of reasons, framing

his various arguments in terms of the statutory sentencing factors enumerated in 18

U.S.C. § 3553(a). In particular, he argued, in connection with the need “[t]o reflect the

seriousness of the offense, promote respect for the law, and provide just punishment for

the offense,” that “[a] downward variance is necessary and warranted to address the

excessive severity of the 16-level increase at U.S.S.G. § 2L1.2(b)(1)(A).” (A34.)

Submitting an exhibit in support of his challenge, he purported to describe in some detail

the various problems with this Guideline enhancement.

       A sentencing hearing was then conducted on November 3, 2009. Counsel for both

the government and Doe stated that there were no objections to the presentence


                                              3
investigation report. After noting the Guideline range calculation in this report and

adopting the report’s factual statements, the District Court informed the defense counsel

that he was ready to “hear whatever you have to say.” (A74.) Doe’s attorney asked

whether the defense’s sentencing memorandum had been received. The District Court

answered in the affirmative and then stated, “I have read it. I’ve read the Government’s

sentencing memorandum. I’ve – they’re made a part of the record.” (A74-A75.) The

defense counsel accordingly noted that, “as I described in the memo, I won’t go into

detail, but [Doe] came back under very difficult circumstances.” (A75.)

         The defense counsel then proceeded to address at some length several of the

arguments raised in Doe’s sentencing memorandum, with the critical exception of his

challenge to the Guideline enhancement. The attorney accordingly discussed Doe’s

background, his personal and family circumstances, his purported reasons for leaving

Jamaica and returning to the United States (e.g., the fear of political violence), his past

efforts at cooperation, and his desire to cooperate in the future. The defense counsel

specifically requested a variance due to the absence of a “fast-track” program for illegal

reentry cases in the Eastern District of Pennsylvania. Doe was also scheduled to be

sentenced by another District Judge for his violation of the term of supervised release

imposed in 2004, and the defense counsel expected that his client would receive a

consecutive sentence for this violation. 1 The defense counsel ultimately asked the

District Court to sentence Doe to a 30-month term of imprisonment: “What I would ask


1
    It appears that Doe did in fact receive a 3-month consecutive sentence for the supervised
                                               4
Your Honor to do under all the circumstances is to give him a variance and – and not a –

not a tremendous variance, but give him a 30 month sentence.” (A79-A80.) Such a

sentence would have been at the low end of the applicable Guideline range if Doe

received a “fast-track” reduction.

       On the other hand, the prosecution, pointing to Doe’s prior criminal history and

other factors, requested a sentence within the Guideline range of 46 to 57 months. In his

reply, the defense counsel focused on the question of cooperation. Doe also made a brief

statement of his own, apologizing for any inconvenience he may have caused and

claiming that he fled Jamaica to the “safest place I ever know on earth.” (A91.)

       Sentencing Doe to a term of imprisonment of 42 months, the District Court

explained its reasoning on the record. It initially noted that “[t]he crime here, reentry

after deportation, is a serious crime to begin with,” which was “made that much more

serious when we have an individual who has been down this road before.” (A92.) In

particular, Doe was previously deported in 1999, reentered the country, was arrested for

illegal reentry as well as for possession of both 100 pounds of marijuana and a firearm,

served a prison sentence of 35 months, was deported for a second time, and yet again

illegally reentered the country. “[T]he fact that we have been down this road before

makes it very difficult for me to take into consideration what may be being done in other

jurisdictions” in terms of some sort of “fast-track” program. (Id.) The District Court

stated that, “in border states they’re not giving an awful lot of consideration to somebody


release violation.
                                              5
who’s been around the horn three times, so this is a most serious offense.” (Id.) On the

other hand, the District Court did take into account Doe’s purported reasons for coming

back to this country as well as his attempts at cooperation (although it also questioned

Doe’s own explanation for why he returned to the United States given his past history of

deception). According to the District Court, it would have actually imposed an even

higher sentence in the absence of such considerations. The District Court believed that a

term of imprisonment of 42 months, which “is below the Guideline range, but not

significantly below the Guideline range,” to be followed by a period of 3 years of

supervised release, represented “a reasonable sentence under these circumstances.”

(A94.) In turn, it hoped that Doe would thereby learn his “lesson” from this sentence,

although the District Court still expressed some concern about the fact that he previously

committed a supervised release violation. (Id.)

       In formally imposing the sentence, the District Court stated that this sentence

punished Doe for his conduct, will deter others, and will protect the public. In its written

statement of reasons, the District Court likewise claimed that the below-Guideline

sentence was reasonable under the circumstances, pointing, inter alia, to the serious

nature of the instant offense, Doe’s status as a repeat offender, and his acts of

cooperation.

                                             II.

       Doe contends that his sentence was procedurally unreasonable because the District

Court failed to consider his argument that the 16-level enhancement called for by


                                              6
U.S.S.G. § 2L1.2(b)(1)(A) unreasonably overstated the seriousness of the offense. 2 A

sentencing court “must acknowledge and respond to any properly presented sentencing

argument which has colorable legal merit and a factual basis.” United States v. Ausburn,

502 F.3d 313, 328-29 (3d Cir. 2007) (citations omitted); see also, e.g., United States v.

Sevilla, 541 F.3d 226, 228, 231-33 (3d Cir. 2008). The government, however, contends

that the District Court satisfied its sentencing obligations in this matter and imposed a

procedurally reasonable sentence. In the end, we reject Doe’s procedural challenge to the

District Court’s sentencing determination.

       Doe certainly addressed the Guideline enhancement’s alleged deficiencies in his

sentencing memorandum, specifically asking for a variance on account of the

enhancement’s allegedly undue severity. But, at the sentencing hearing itself, neither the

defense attorney nor Doe ever mentioned, even indirectly or in passing, the Guideline

enhancement and its purported deficiencies. In contrast, the defense counsel did ask for a

lower sentence based on other grounds raised in the sentencing memorandum, including

Doe’s purported reasons for returning to the United States, his efforts at cooperation, and

(especially) the absence of a “fast-track” program in the Eastern District. Far from

explaining the alleged problems with the Guideline enhancement and asking for a

variance or a lower sentence because of these problems, the attorney went so far as to


2
  The District Court had subject matter jurisdiction over this matter pursuant to 18 U.S.C.
§ 3231. We have appellate jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
We generally review a district court’s sentencing decision for an abuse of discretion, and
this review includes determining whether the district court committed a significant
procedural error by, for example, failing to consider colorable arguments raised by the
                                              7
request a 30-month term of imprisonment. Doe’s attorney thereby sought a sentence

above the range that would have applied in the absence of the Guideline enhancement.

       While the District Court certainly could have addressed the attack on the Guideline

enhancement in more detail, it quite understandably focused on the various contentions

actually raised at the sentencing hearing itself. In any case, the District Court indicated

that it had received the defense’s sentencing memorandum and read both this

memorandum as well as the memorandum submitted by the government. More broadly,

the District Court clearly believed that a 42-month sentence, which was itself below the

“enhanced” Guideline range as calculated by the probation officer, was necessary and

appropriate under the circumstances. Finding Doe’s own criminal history to be quite

troubling, the District Court emphasized that Doe himself was previously deported, then

served a sentence of 35 months for illegal reentry, possession of 100 pounds of marijuana,

and illegal possession of a firearm, and, despite still being subject to a term of supervised

release, illegally reentered the country yet again. Finally, we must not overlook the

practical circumstances surrounding a district court’s sentencing determination. See, e.g.,

Ausburn, 502 F.3d at 328 (“We have recognized that ‘sentencing judges normally state

and resolve issues from the bench while the sentencing proceeding is underway,’ and that

these contextual and ‘often spontaneous remarks are addressed primarily to the case at

hand and are unlikely to be a perfect or complete statement of all of the surrounding

law.’” (quoting United States v. Cooper, 437 F.3d 324, 330 n.8 (3d Cir. 2006))).


defendant. See, e.g., United States v. Sevilla, 541 F.3d 226, 230-32 (3d Cir. 2008).
                                              8
                                           III.

        For the foregoing reasons, we will affirm the District Court’s judgment. 3




3
  Doe also filed a motion for leave to proceed under a pseudonym as well as a motion for
leave to file the second volume of the joint appendix under seal. Both motions are
granted.
                                            9
