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


11-20-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2775




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-2775


                           UNITED STATES OF AMERICA

                                           v.

                                 DAMION HARVEY,
                                         Appellant


                      Appeal from the United States District Court
                       for the Western District of Pennsylvania
                          (D.C. Criminal No. 05-cr-00047-1)
                        District Judge: Honorable Joy F. Conti


                      Submitted Under Third Circuit LAR 34.1(a)
                                  October 31, 2007

                  Before: RENDELL and NYGAARD, Circuit Judges,
                           and McCLURE, District Judge.

                              (Filed: November 20, 2007)



                              OPINION OF THE COURT




       * Honorable James F. McClure, Jr., Senior Judge of the United States District
Court Judge for the Middle District of Pennsylvania, sitting by designation.

RENDELL, Circuit Judge.
                                            I.

      Damion Harvey appeals from the sentence imposed by the District Court of 41

months of incarceration after Harvey pled guilty to one count of conspiracy to defraud

the United States, in violation of 18 U.S.C. §371, and one count of bank fraud, in

violation of 18 U.S.C. §§1344(1) & (2). Harvey raises three arguments on appeal. First,

Harvey argues that the District Court violated the Sentencing Reform Act, 18 U.S.C. §

3582(a), when it increased his sentence for the sole purpose of allowing him to

participate in a substance abuse program. Second, Harvey asserts that his sentence

violates the Eighth Amendment’s proscription against cruel and unusual punishment.

Finally, he argues that this sentence was unreasonable because the District Court gave

presumptive weight to the Sentencing Guidelines. For the reasons that follow, we will

affirm the sentence imposed by the District Court.

                                            II.

      On March 2, 2005, a grand jury returned a two-count indictment charging Harvey

and his co-defendant, Tanavia Hodges, with bank fraud and aiding and abetting bank

fraud, in violation of 18 U.S.C. §§1344(1) & (2), and criminal conspiracy to defraud the

United States, in violation of 18 U.S.C. § 371. On September 19, 2005, Harvey pled

guilty. During his plea hearing, Harvey admitted that he conspired with a number of

individuals to cash counterfeit checks and share the proceeds. (App. 45-46). The District

Court ordered a presentence investigation report (“PSR”). The PSR calculated Harvey’s

advisory Sentencing Guidelines range to be between 51 and 63 months’ imprisonment,

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based partly on a criminal history category of Level IV. Harvey objected to the criminal

history category level and the District Court agreed and therefore departed to a criminal

history category of Level III. The Court determined that the advisory Sentencing

Guidelines range was between 41 and 51 months’ imprisonment.

       Defense counsel then argued that a sentence of 30 months, with a recommendation

that Harvey be placed in the Bureau of Prisons 500-hour substance-abuse treatment

program, was appropriate based on a number of factors, including Harvey’s alcohol

abuse. The District Court considered several of the factors found in 18 U.S.C. §§ 3553(a)

and ultimately sentenced Harvey to 41 months’ imprisonment, the lowest point of the

advisory guideline range. The Court also ordered Harvey to pay restitution in the amount

of $311,903.12.

                                            III.

       Harvey first asserts that the District Court violated the Sentencing Reform Act, 18

U.S.C. § 3582(a), because it increased his sentence for the sole purpose of allowing him

to participate in a substance abuse program. Harvey relies on United States v. Manzella,

in which this Court held that a defendant cannot “be sent to prison or held there for a

specific length of time for the sole purpose of rehabilitation.” 475 F.3d 152, 160-61 (3d

Cir. 2007). While the District Court did note that it wished for Harvey to receive

treatment for his alcoholism while in prison, the District Court also thoroughly considered

the factors found in 18 U.S.C. §§ 3553(a), complying with this Court’s decision in United



                                             3
States v. Cooper, 437 F.3d 324, 330 (3d Cir. 2006). The record establishes that the

District Court “gave meaningful consideration” both to the §3553(a) factors and to

“sentencing grounds properly raised by the parties which have recognized legal merit and

factual support.” Id. at 329, 331. Finally, the District Court provided detailed reasons

for the sentence imposed.

       This is not a case like Manzella where the district court increased a defendant’s

sentence to 30 months’ imprisonment even though Guidelines Range was 2 to 8 months’

imprisonment. 475 F.3d at 155-56. Here, the District Court sentenced Harvey to the low

end of the applicable Guidelines Range. Furthermore, unlike Manzella, the Court here

discussed other factors contributing to her decision at length and did not increase

Harvey’s sentence solely to allow him to participate in a substance abuse program.

Therefore, Harvey’s argument that the District Court violated the Sentencing Reform Act,

18 U.S.C. § 3582(a), fails.

       Harvey next argues that his sentence violates the Eighth Amendment’s

proscription against cruel and unusual punishment. Harvey relies on Robinson v.

California, 370 U.S. 660, 666-67 (1962), in which the Supreme Court held that a statute

penalizing individuals for their status as drug addicts amounted to cruel and unusual

punishment in violation of the Eighth and Fourteenth Amendments. As previously noted,

Harvey’s sentence was based on his criminal behavior and the factors found in 18 U.S.C.

§§ 3553(a), not his addiction. Thus, no violation of the Eighth Amendment occurred.

See United States v. MacEwan, 445 F.3d 237, 241 n. 11 (3d Cir. 2006) (holding

                                             4
punishment was based not on status of addiction but rather for violation federal law

prohibiting the receipt of child pornography). Harvey’s Eighth Amendment argument,

therefore, fails.

       Finally, Harvey argues that the sentence imposed was unreasonable because the

District Court gave presumptive weight to the Guidelines Range. The record reflects that

the District Court clearly understood that the Guidelines are advisory and that it was

required to calculate the Guidelines range, but was not bound to sentence Harvey within

that range. Moreover, when explaining its sentence, the District Court noted the

applicable guideline range was only one factor to consider. Accordingly, Harvey’s

argument that his sentence is unreasonable is without merit.

                                            IV.

       For the foregoing reasons, we will affirm the sentence imposed in the Judgment

and Commitment Order of the District Court.




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