                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-4-2008

USA v. Sevilla
Precedential or Non-Precedential: Precedential

Docket No. 07-1105




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                                   PRECEDENTIAL

UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT


               No. 07-1105


    UNITED STATES OF AMERICA

                     v.

          EDUARDO SEVILLA
           a/k/a Wilfredo Garcia
                  a/k/a Mex
                a/k/a Mexico
          a/k/a Wilfredo Beltram

                  EDUARDO SEVILLA,
                      Appellant


Appeal from the United States District Court
   for the Middle District of Pennsylvania
 (D.C. Criminal Action No. 05-cr-00363-1)
   District Judge: Honorable Yvette Kane


         Argued February 5, 2008
           Before: MCKEE and AMBRO, Circuit Judges,
                   and IRENAS,* District Judge

                Opinion filed: September 4, 2008

James V. Wade
  Federal Public Defender
Fredrick W. Ulrich (Argued)
  Assistant Federal Public Defender
Office of the Federal Public Defender
100 Chestnut Street, Suite 306
Harrisburg, PA 17101

       Counsel for Appellant

Thomas A. Marino
  United States Attorney
Eric Pfisterer
  Assistant United States Attorney
Theodore B. Smith (Argued)
  Assistant United States Attorney
United States Attorney’s Office
Middle District of Pennsylvania
228 Walnut Street, Suite 220
Harrisburg, PA 17108

       Counsel for Appellee


       *
        Honorable Joseph E. Irenas, Senior District Judge for the
District of New Jersey, sitting by designation.

                               2
                 OPINION OF THE COURT


AMBRO, Circuit Judge

       Where, as here, a convicted criminal defendant presents
to the District Court a colorable argument for a lower sentence
under 18 U.S.C. § 3553(a), and the District Court fails to
address that argument, must the defendant then object in order
to preserve the argument for appeal? We conclude that, under
our precedent, he need not. Accordingly, we review the District
Court’s omissions in this case not for plain error, but to
determine whether the Court properly exercised its discretion by
giving meaningful consideration to the relevant factors.

        Applying this standard, we find insufficient evidence for
us to discern whether the District Court meaningfully considered
two of Appellant Eduardo Sevilla’s arguments for a lower
sentence. We thus vacate Sevilla’s sentence and remand for
resentencing.

I.     Background

       Sevilla pled guilty to conspiracy to distribute, and to
possess with intent to distribute, cocaine base. At sentencing the
Government contended that although Sevilla initially obstructed
justice after his arrest, he subsequently provided substantial

                                3
assistance to the Government, making inappropriate an increase
in the offense level under U.S.S.G. § 3C1.1 for obstruction. The
Government also moved for a downward departure under
U.S.S.G. § 5K1.1 based on Sevilla’s assistance.

       Both in his sentencing memorandum and at the
sentencing hearing, Sevilla raised several grounds for a lower
sentence under 18 U.S.C. § 3553(a).1 For instance, as to his


       1
         Considering the § 3553(a) factors to arrive at an
ultimate sentence corresponds to step three of United States v.
Gunter, 462 F.3d 237, 247 (3d Cir. 2006). For reference,
§ 3553(a) reads:

       Factors to be considered in imposing a
       sentence.—The court shall impose a sentence
       sufficient, but not greater than necessary, to
       comply with the purposes set forth in paragraph
       (2) of this subsection. The court, in determining
       the particular sentence to be imposed, shall
       consider—
               (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
                       offense;

                               4
                      (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 or 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—
                      (A) the applicable category of offense
                      committed by the applicable category of
                      defendant as set forth in the guidelines—
                              (i) issued by the Sentencing
                              Commission pursuant to section
                              994(a)(1) of title 28, United States
                              Code, subject to any amendments
                              made to such guidelines by act of
                              Congress (regardless of whether
                              such amendments have yet to be
                              incorporated by the Sentencing
                              Commission into amendments
                              issued under section 994(p) of title
                              28); and
                              (ii) that, except as provided in
                              section 3742(g), are in effect on the
                              date the defendant is sentenced; or
                      (B) in the case of a violation of probation

                                5
        or supervised release, the applicable
        guidelines or policy statements issued by
        the Sentencing Commission pursuant to
        section 994(a)(3) of title 28, United States
        Code, taking into account any amendments
        made to such guidelines or policy
        statements by act of Congress (regardless
        of whether such amendments have yet to
        be incorporated by the Sentencing
        Commission into amendments issued
        under section 994(p) of title 28);
(5) any pertinent policy statement—
        (A) issued by the Sentencing Commission
        pursuant to section 994(a)(2) of title 28,
        United States Code, subject to any
        amendments made to such policy
        statement by act of Congress (regardless of
        whether such amendments have yet to be
        i n c o r p o r a t e d b y th e S e n te n c in g
        Commission into amendments issued
        under section 994(p) of title 28); and
        (B) that, except as provided in section
        3742(g), is in effect on the date the
        defendant is sentenced[;]
(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

                    6
“history and characteristics,” § 3553(a)(1), Sevilla pointed to his
difficult childhood. Sentencing Memorandum on Behalf of
Defendant at 4–5, United States v. Sevilla, No. 1:05-CR-00363
(M.D. Pa. Nov. 22, 2006). He further argued that the federal
Sentencing Guidelines’ disparate treatment of crack and powder
cocaine created a base offense level that did not accurately
reflect his culpability. Id. at 7–10.

        The District Court agreed not to increase the offense
level for obstruction. It also decreased the offense level due to
acceptance of responsibility and granted the Government’s
motion for a downward departure for substantial assistance,
though the Court noted it was reluctant to do so given Sevilla’s
initially obstructive behavior. The final advisory Guidelines
range was 70 to 87 months, and the District Court sentenced
Sevilla to 72 months’ imprisonment.

       The District Court did not address, however, Sevilla’s
arguments relating to his childhood or the crack/powder cocaine
disparity. See App. 81–85. Rather, the Court stated:

       So having considered all of the [§] 3553(a) factors
       and the treatment of the co-defendants in the case,
       I’m going to accept the Government’s


of the offense.

§ 3553(a).

                                7
       recommendation and sentence the defendant,
       assuming a criminal history category three and a
       guideline range based on the downward departure
       motion of 70 months to 87 months, I’m going to
       sentence him to 72 months.

App. 82. Sevilla appeals his sentence to challenge these
omissions.2

II.    Standard of Review

        We review the District Court’s sentence for abuse of
discretion. United States v. Gall, 128 S. Ct. 586, 597 (2007). In
this regard, “our role is two-fold.” United States v. Wise, 515
F.3d 207, 217 (3d Cir. 2008). We must “first ensure that the


       2
         The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have appellate jurisdiction under 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a). See United States v. Lloyd, 469 F.3d
319, 321 (3d Cir. 2006). The Government argues that we lack
appellate jurisdiction to review the extent of the District Court’s
downward departure. Government’s Br. 2, 10–11. This
argument is irrelevant, however, because Sevilla clearly
challenges only the District Court’s failure in setting his
sentence to address his arguments for a lower sentence under §
3553(a). See Sevilla’s Br. 2 (framing issue as “Whether the
District Court Failed to Meaningfully Consider the Relevant
Factors Under Section 3553(a) of the Sentencing Reform Act of
1984”).

                                8
district court committed no significant procedural error”—for
instance, by “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing
to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence—including an explanation for any deviation
from the Guidelines range.” Gall, 128 S. Ct. at 597; Wise, 515
F.3d at 217. Second, “[i]f we determine that the district court
has committed no significant procedural error, we then review
the substantive reasonableness of the sentence under an abuse-
of-discretion standard, regardless of whether it falls within the
Guidelines range.” Wise, 515 F.3d at 218; see also Gall, 128 S.
Ct. at 597. Because we perceive a procedural error that requires
resentencing in this case, we do not address the issue of
substantive reasonableness.

        Our Court’s decision in United States v. Gunter requires
district courts to follow a three-step sentencing procedure:

       (1) Courts must continue to calculate a
       defendant’s Guidelines sentence precisely as they
       would have before [United State v. Booker, 543
       U.S. 220 (2005)].


       (2) In doing so, they must formally rule on the
       motions of both parties and state on the record
       whether they are granting a departure and how
       that departure affects the Guidelines calculation,

                                9
       and take into account our Circuit’s pre-Booker
       case law, which continues to have advisory force.


       (3) Finally, they are required to exercise their
       discretion by considering the relevant § 3553(a)
       factors in setting the sentence they impose
       regardless whether it varies from the sentence
       calculated under the Guidelines.

462 F.3d 237, 247 (3d Cir. 2006) (internal citations, quotation
marks, and brackets omitted). As noted above, it is undisputed
here that the District Court complied with steps one and two: it
calculated the Guidelines range and formally ruled on the
Government’s motion for a downward departure under U.S.S.G.
§ 5K1.1. The parties disagree, however, whether the District
Court complied with step three in light of its failure to address
some of Sevilla’s arguments for a lower sentence.

       A.     We Review for Meaningful Consideration, Not
              Plain Error

       The Government argues that, because Sevilla failed to
object to the District Court’s omissions at close of sentencing,
we must review those omissions for plain error.             See




                               10
Government’s Br. 2–3.3 We disagree. Our Court’s en banc
decision in United States v. Grier precludes this argument. See
475 F.3d 556 (2007) (en banc). There, the defendant failed to
object at sentencing after the District Court’s conclusory
explanation that it “believes that 100 months is reasonable in
view of the considerations of [18 U.S.C. §] 3553(a).” Id. at 561
(alteration in original). We nonetheless reviewed, and not for
plain error, the District Judge’s conclusory explanation to
determine whether she gave meaningful consideration to the
relevant factors, because “[a]n objection to the reasonableness


       3
          Several of our sister courts of appeals have applied
plain error review to unpreserved allegations that the district
court did not explain its discretionary sentence adequately. See,
e.g., United States v. Penson, 526 F.3d 331, 337 (6th Cir. 2008);
United States v. Peltier, 505 F.3d 389, 391–94 (5th Cir. 2007);
United States v. Villafuerte, 502 F.3d 204, 208–09 (2d Cir.
2007); United States v. Romero, 491 F.3d 1173, 1176–77 (10th
Cir. 2007); United States v. Gilman, 478 F.3d 440, 447 (1st Cir.
2007); United States v. Sylvester Norman Knows His Gun, III,
438 F.3d 913, 918 (9th Cir. 2006). Other courts seem to
disagree with this approach, however, reviewing for
reasonableness. See, e.g., United States v. Dale, 498 F.3d 604,
610 n.5, 611–12 (7th Cir. 2007); United States v. Swehla, 442
F.3d 1143, 1145 (8th Cir. 2006) (arguably in conflict with
United States v. Bistrup, 449 F.3d 873, 883–84 (8th Cir. 2006)
(unpreserved objection to district court’s explanation reviewed
for plain error)); United States v. Williams, 438 F.3d 1272, 1274
(11th Cir. 2006).

                               11
of the final sentence will be preserved if, during sentencing
proceedings, the defendant properly raised a meritorious factual
or legal issue relating to one or more of the factors enumerated
in 18 U.S.C. § 3553(a).” Id. at 571 & n.11. We ultimately
concluded the Court’s explanation was insufficient, as it was
“devoid of substantive content and offer[ed] little assistance to
an appellate tribunal.” Id. at 571. Accordingly, we remanded
the case for resentencing. Id. at 572.

        We are mindful of cases in our Court that arguably
suggest that plain error review applies where a defendant fails
to object to a district court’s explanation of its sentence. See,
e.g., United States v. Dragon, 471 F.3d 501, 505 (3d Cir. 2006)
(“[The defendant] claims his sentence is unreasonable under
Booker because the District Court failed to adequately consider
the parsimony provision of 3553(a), which directs the court to
‘impose a sentence sufficient, but not greater than necessary[,]’
to comply with the purposes specified in the statute. Because
[the defendant] did not raise this objection at the sentencing
hearing, we review his claim for plain error.”); Lloyd, 469 F.3d
at 325–26 (stating that defendant “did not advance” in the
district court his contention that the district court was obligated
to state its reasoning under § 3553(c)(1), and concluding that the
district court’s explanation “could not rise to the level of plain
error or, indeed, any error at all”); United States v. Parker, 462
F.3d 273, 278–79 (3d Cir. 2006) (stating that, because the
defendant did not object before the district court to its
explanation of the sentence under § 3553(c), the court of appeals

                                12
would “review this claim for plain error,” and concluding that
the district court “did not plainly err” in commenting on the
§ 3553(a) factors).

       Even assuming those decisions conflict with our later
decision in Grier, however, we must follow Grier. As an en
banc opinion, Grier is intervening and controlling authority.
See Reich v. D.M. Sabia Co., 90 F.3d 854, 858 (3d Cir. 1996)
(“Although a panel of this court is bound by, and lacks authority
to overrule, a [precedential] decision of a prior panel, a panel
may reevaluate a precedent in light of intervening authority and
amendments to statutes or regulations.” (citation omitted)).

       Here, Sevilla squarely raised his difficult childhood and
the crack/powder disparity, both in his sentencing memorandum
and at his sentencing hearing. Under Grier, then, the District
Court’s failure to address those issues did not require Sevilla to
re-raise them to avert plain error review of these omissions.

       B.     Meaningful Consideration Review

       “To determine if the [district] court acted reasonably in
imposing the resulting sentence, we must first be satisfied the
court exercised its discretion by considering the relevant
factors.” United States v. Cooper, 437 F.3d 324, 329 (3d Cir.
2006). As we explained in Cooper:

       The record must demonstrate the trial court gave

                               13
       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 as to each of the § 3553(a) factors if the
       record makes clear the court took the factors into
       account in sentencing. . . .

              On the other hand, a rote statement of the
       § 3553(a) factors should not suffice if at
       sentencing either the defendant or the prosecution
       properly raises “a ground of recognized legal
       merit (provided it has a factual basis)” and the
       court fails to address it. . . .

               On this issue, we disagree with the
       decision of the Court of Appeals for the Eleventh
       Circuit in United States v. Scott, [426 F.3d 1324,
       1329–30 (11th Cir. 2005),] where the court held
       a district court’s statement that it considered both
       the defendant’s arguments and the § 3553(a)
       factors at sentencing is by itself sufficient for
       Booker purposes.

Id. at 329 & n.6 (internal citations omitted); see also Grier, 475
F.3d at 571–72 (“The record must disclose meaningful
consideration of the relevant statutory factors and the exercise
of independent judgment, based on a weighing of the relevant

                               14
factors, in arriving at a final sentence.”); United States v.
Jackson, 467 F.3d 834, 842 (3d Cir. 2006) (“Merely reciting the
§ 3553(a) factors, saying that counsel’s arguments have been
considered, and then declaring a sentence, are insufficient to
withstand our reasonableness review.”); United States v. King,
454 F.3d 187, 196–97 (3d Cir. 2006) (stating that district courts
“should observe the requirement to state adequate reasons for a
sentence on the record so that this court can engage in
meaningful appellate review”).

III.   The District Court’s Explanation Requires Remand

       Here, the record does not indicate that the District Court
considered the § 3553(a) factors at Gunter’s step three.
Although the Court considered Sevilla’s role in the crime
compared to that of his co-conspirators,4 it did not address
Sevilla’s colorable arguments relating to his childhood and the
crack/powder disparity5 other than to say that it had “considered


       4
         We have held that “[a]lthough § 3553(a) does not
require district courts to consider sentencing disparity among co-
defendants, it also does not prohibit them from doing so.”
Parker, 462 F.3d at 277.
       5
        The Supreme Court’s decision in Kimbrough v United
States, U.S. , 128 S.Ct. 558, 575 (2007) — and our Court’s
sequel decision in United States v. Gunter, 527 F.3d 282, 286
(3d Cir. 2008), as well as United States v. Ricks, 494 F.3d 394,
402-03 (3d Cir. 2007) — make clear that any determination at

                               15
all of the [§] 3553(a) factors.” Given that “a rote statement of
the § 3553(a) factors should not suffice if at sentencing either
the defendant or the prosecution properly raises a ground of
recognized legal merit (provided it has a factual basis) and the
court fails to address it,” Cooper, 437 F.3d at 329 (internal
quotation marks omitted), these omissions require remand. As
in Grier, however, “[w]e do not suggest that the original
sentence reflects anything less than the sound judgment of the
District Judge, or that the final sentence should necessarily
differ from the one previously imposed.” 475 F.3d at 572.

IV.    Conclusion

      For the foregoing reasons, we vacate Sevilla’s sentence
and remand for resentencing.




step three that the crack/powder cocaine disparity is “too vast,”
id. at 403, must give reasons that relate to the particular
defendant and not be a categorical rejection of that disparity.

                               16
