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


10-25-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4419




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                                                              NOT PRECEDENTIAL

                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                   Case No: 05-4419

                           UNITED STATES OF AMERICA

                                             v.

                                ANTONIO M. TIRADO,

                                             Appellant



                    On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                              District Court No.: 04-CR-04E
                   District Judge: The Honorable Sean J. McLaughlin


                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  October 24, 2006

                 Before: SMITH, FISHER, and COWEN, Circuit Judges

                                (Filed: October 25, 2006)


                                        OPINION


SMITH, Circuit Judge.

      Antonio M. Tirado, a convicted felon, was found guilty by a jury of knowingly

possessing a firearm in violation of 18 U.S.C. § 922(g)(1). He was sentenced, inter alia,

to a term of 120 months’ imprisonment. He filed a timely appeal, challenging both his
conviction and his sentence. We affirmed his conviction, but vacated his sentence and

remanded for resentencing in accordance with the Supreme Court’s decision in United

States v. Booker, 543 U.S. 220 (2005). See United States v. Tirado, 133 Fed. Appx. 13

(3d Cir. 2005).

       On remand, the parties were again afforded an opportunity to state their positions

with respect to sentencing factors. The pre-sentence report assessed Tirado’s base

offense level at 24 under United States Sentencing Guideline § 2K2.1(a)(2) because he

had a 1999 felony conviction for possession of marijuana with intent to deliver which

qualified as a controlled substance offense and a 1997 simple assault conviction which

constituted a crime of violence. An offense level of 24 together with Tirado’s Criminal

History Category of VI yielded a sentencing range of 100-125 months. The upper limit of

this range was reduced to 120 months to comply with the statutory maximum of ten years

for a § 922(g)(1) offense.

       Tirado objected to the offense level of 24, contending that the marijuana

conviction should not have been considered in calculating his offense level because he

had been denied the effective assistance of counsel. Tirado asserted that he should not

have been charged with a misdemeanor offense because of the small amount of marijuana

in his possession and that his state defense counsel was ineffective as he failed to

challenge this aspect of the state’s case. Alternatively, Tirado urged the District Court to

consider these circumstances in this post-Booker resentencing, to look past a rigid

application of the guidelines, and to impose a below guideline sentence. Additionally,

                                              2
Tirado submitted that his felony assault conviction would not have qualified as a crime of

violence in any other state in this circuit and that the resulting disparity between his

guideline and that of defendants in other states weighed in favor of a below guideline

sentence. In short, although Tirado did not explicitly argue that his criminal history

overstated the seriousness of his past criminal conduct, he implicitly pressed for a below

guideline sentence on this very basis.

       The prosecution pressed the District Court to impose the statutory maximum of ten

years. It emphasized the extensiveness of Tirado’s criminal history and claimed that his

past “screams out to the court that this man needs to be taken off the street.”

       The District Court rejected Tirado’s contention that he had been constructively

denied the assistance of counsel on his marijuana conviction and concluded that the

offense level of 24 was correct.1 It acknowledged that the guidelines were only advisory

after the Supreme Court’s decision in Booker and that it must consider all of the factors in

18 U.S.C. § 3553(a) to impose a sentence that is “sufficient, but not greater than

necessary.” The Court advised that it had “carefully considered” all of the factors set out

in § 3553(a) and declared that “[a]s was true at the original sentencing,” the record

demonstrated a significant criminal history, consisting of 17 prior adult and juvenile

convictions, Tirado’s “complete lack of remorse,” and his “pattern of contempt for

authorities.” The Court explained that the factors it found of “paramount importance” in


   1
   Tirado does not contend that the District Court’s calculation of the offense level of 24
was incorrect. Accordingly, we need not address this issue.
                                              3
exercising its discretion were the protection of the public and the deterrence of future

criminal conduct. The Court again imposed a sentence of 120 months of imprisonment.

       This timely appeal followed.2 Relying on Booker’s instruction that the guidelines

are only advisory and that sentences must be reviewed for reasonableness, 543 U.S. at

261, Tirado contends that the sentence imposed by the District Court was unreasonable.

He submits that resentencing is warranted because the Court failed to respond to his

arguments, failed to state its reasons for the sentence imposed, gave presumptive weight

to the guidelines, and imposed a sentence that was greater than necessary to meet the

purposes of sentencing.

       In United States v. Cooper, 437 F.3d 324 (3d Cir. 2006), we instructed that “[t]o

determine if the court acted reasonably in imposing the resulting sentence, we must first

be satisfied the court exercised its discretion by considering the relevant factors.” Id. at

329. In other words, the “record must demonstrate the trial court gave meaningful

consideration to the § 3553(a) factors.” Id. The burden is upon the defendant to

demonstrate unreasonableness. Id. at 332. Although we rejected the position that

reasonableness may be presumed if a sentence falls within the guideline range, id., we

acknowledged that a within guideline sentence is more likely to be reasonable. Id. The

reasonableness of a sentence, however, is not determined by any “magic words that a



   2
    The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise
appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). See United
States v. Cooper, 437 F.3d 324, 327-28 (3d Cir. 2006).
                                              4
district judge must invoke when sentencing . . . .” Id. Instead, we must scrutinize the

record to verify that the “court considered the § 3553(a) factors and any sentencing

grounds properly raised by the parties . . . .” Id.

       We disagree with Tirado’s contention that the District Court simply imposed the

same sentence that it had pre-Booker, completely failed to address his arguments, and did

not explain its reasons for the sentence imposed. The record demonstrates that the

District Court heard lengthy arguments by counsel pertaining to whether Tirado’s past

convictions were more benign than they appeared in the pre-sentence report and weighed

in favor of a sentence below his guideline range of 100 to 120 months. The District Court

was engaged in these arguments, asking questions and pointing out various details

regarding these convictions. It was not persuaded, however, and explained that the

extensiveness of Tirado’s criminal history, his lack of remorse, and his contempt for

authorities weighed in favor of imposing the statutory maximum of ten years in order to

protect the public and to deter further criminal conduct. This explication, contrary to

Tirado’s assertion, is sufficient to demonstrate that the Court exercised its discretion only

after weighing the § 3553(a) factors and considering the purposes for imposing a

sentence. In light of this explanation, we find that the District Court’s sentence is not

unreasonable, and we will affirm its judgment.




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