                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-11-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4293




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"USA v. Gilbert" (2007). 2007 Decisions. Paper 99.
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                                                                NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                      No. 06-4293



                           UNITED STATES OF AMERICA

                                            v.

                               NATHANIEL GILBERT,
                                            Appellant



                     On Appeal from the United States District Court
                             for the District of New Jersey
                                 (D.C. No. 06-cr-00418)
                      District Judge: Honorable Robert B. Kugler



                       Submitted Under Third Circuit LAR 34.1(a)
                                  December 10, 2007

        Before: SLOVITER, AMBRO, Circuit Judges, and RESTANI*, Judge

                               (Filed: December 11, 2007)

                                       OPINION




SLOVITER, Circuit Judge.


                 *
                   Hon. Jane A. Restani, Chief Judge, United States Court of
          International Trade, sitting by designation.
       Nathaniel Gilbert appeals from his sentence of sixty months imprisonment for

assault of a United States Postal Service contractor with the intent to rob him, in violation

of 18 U.S.C. § 2114(a) and § 2. Gilbert’s appeal is limited to his claim that the District

Court did not understand its discretion to impose the sentence to run concurrent with

Gilbert’s state sentence.

                                             I.

       Gilbert, using a fake gun, assaulted and robbed a contractor for the United States

Postal Service on November 23, 2004, and stole more than $28,000 in mail, money, and

other property. At that time, Gilbert was awaiting sentencing on two unrelated state

charges. On April 15, 2005, after Gilbert committed the federal offense, he was

sentenced in state court to five years imprisonment for drug distribution and eighteen

months imprisonment for resisting arrest. The state judge specified that these sentences

were to be served concurrently with each other, and “concurrent to any federal sentence.”

App. at 46.

       More than a year later, on June 2, 2006, Gilbert pled guilty pursuant to a plea

agreement to the federal charge of assaulting a contractor for the United States Postal

Service with intent to rob. The plea agreement stipulated that the offense level should be

level 26 or 27 under the United States Sentencing Guidelines (“U.S.S.G.”),1 subject to a


                    1
                      The parties disagreed over whether Gilbert “brandished,”
              as opposed to “otherwise used,” a “dangerous weapon” during the
              robbery. See U.S.S.G. § 2B3.1(b)(2)(D), (E). The District Court
              ultimately concluded that Gilbert “otherwise used” a “dangerous

                                              2
three level reduction for acceptance of responsibility. The parties did not agree in the

plea agreement as to whether the sentence should be concurrent with or consecutive to

Gilbert’s state sentences. Prior to the sentencing, the United States moved for a

downward departure pursuant to § 5K1.1 of the Sentencing Guidelines due to Gilbert’s

substantial assistance to the government in an unrelated case.

       At the sentencing hearing, the District Court granted the government’s § 5K1.1

motion and the government deferred to the District Court’s discretion as to whether the

downward departure should be in the form of a concurrent sentence or as one of the

factors to be considered under 18 U.S.C. § 3553(a). Although the Sentencing Guidelines

range was 92 to 115 months, the District Court sentenced Gilbert to sixty months

imprisonment, to be served consecutively with other state or federal sentences, as well as

supervised release and restitution. Gilbert filed a timely appeal.

                                             II.

       We review the district court’s imposition of a concurrent or consecutive sentence

for abuse of discretion. United States v. Lloyd, 469 F.3d 319, 321 (3d Cir. 2006); United

States v. Swan, 275 F.3d 272, 275 (3d Cir. 2002). Under 18 U.S.C. § 3584, multiple

terms of imprisonment may be imposed either consecutively or concurrently, and the

district court must consider the 18 U.S.C. § 3553(a) factors when making this

determination. The policy statement in U.S.S.G. § 5G1.3(c) provides that a sentence may


            weapon” and that the robbery was therefore a level 27 offense,
            minus three levels for acceptance of responsibility.

                                             3
be imposed concurrently, partially concurrently, or consecutively to an undischarged

sentence “to achieve a reasonable punishment for the instant offense.”

       We do not agree with Gilbert that the District Court was not aware of its discretion

to impose either a consecutive or concurrent sentence. In fact, the District Court

explicitly advised Gilbert that it had the discretion to impose a consecutive sentence. In

making that decision, the District Court carefully balanced the 18 U.S.C. § 3553(a)

factors. The Court discussed the nature and circumstances of the offense, referred to the

armed robbery as “a bad crime,” noted Gilbert’s extensive prior criminal history, and

concluded that Gilbert is a danger to the public and requires correctional treatment. App.

at 84. The Court described the need for the sentence to reflect the seriousness of the

offense, promote respect for the law, provide just punishment, and afford deterrence to

further criminal conduct. Finally, the Court noted Gilbert’s substantial cooperation with

the government in the unrelated matter, reflected in the government’s § 5K1.1 motion.

Thus, the Court accounted for any sentencing disparity between Gilbert and his

accomplices who had already been sentenced.

       Of course, the District Court was not bound by the state judge’s recommendation

of concurrency, as the state sentence was imposed before Gilbert was charged or

sentenced for the federal offense. After reviewing the § 3553(a) factors, the District

Court exercised its discretion in imposing a sentence significantly below the guidelines

range but a sentence nonetheless to run consecutively to Gilbert’s state sentence, a

sentence that reflected both the seriousness of the crime and Gilbert’s significant

                                             4
cooperation with the government.

                                           III.

      We conclude that the District Court did not abuse its discretion in imposing a

sentence of sixty months to be served consecutively with Gilbert’s state sentence. Indeed,

had the Court imposed the sentence to run concurrently, it would have allowed Gilbert to

escape punishment for the armed robbery. Accordingly, we will affirm.




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