                                                     NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 09-2656


                          UNITED STATES OF AMERICA

                                          v.

                                 RODNEY STEFEK,
                                               Appellant


                   On Appeal from the United States District Court
                      for the Western District of Pennsylvania
                      (D.C. Criminal No. 2-08-cr-00436-001)
                       District Judge: Hon. Gustave Diamond


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   April 13, 2010

            BEFORE: FISHER, HARDIMAN and COWEN, Circuit Judges

                                (Filed: May 19, 2010)


                                      OPINION


COWEN, Circuit Judge

      Rodney Stefek appeals the judgment of the District Court sentencing him to a

151-month term of imprisonment. Stefek contends that his sentence is procedurally and

substantively unreasonable. We will affirm.
I.       BACKGROUND

         Stefek was indicted for one count of bank robbery, in violation of 18 U.S.C.

§ 2113(a). At a combined plea and sentencing hearing, he pleaded guilty to the sole

count of the indictment.

         The pre-sentence investigation report (“PSR”) was prepared in advance of the

combined hearing. The PSR indicated that Stefek qualified to be sentenced as a “career

offender” pursuant to United States Sentencing Guideline (“U.S.S.G.”) § 4B1.1(a).1 In

support of this designation, the PSR listed two prior crimes of violence. The first was a

1990 Ohio state conviction for aggravated assault with firearm specification. He

received a term of imprisonment of eighteen months plus an additional consecutive term

of three years for the firearm specification. He was released on August 2, 1994. The

second was a 2001 Ohio state conviction for robbery. The designation as a career

offender increased Stefek’s base offense level from 21 to 29 and increased his criminal


     1
     The 2008 version of the career offender provision, under which Stefek was
sentenced, states that:

               A defendant is a career offender if (1) the defendant was at
               least eighteen years old at the time the defendant committed
               the instant offense of conviction; (2) the instant offense of
               conviction is a felony that is either a crime of violence or a
               controlled substance offense; and (3) the defendant has at
               least two prior felony convictions of either a crime of
               violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a). It is the District Court’s determination regarding the third factor
that is at issue on appeal.

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history category from V to VI. These increases resulted in a guidelines sentencing range

of 151 to 188 months of imprisonment. Had he not been designated as a career offender,

he would have faced a guidelines sentencing range of 70 to 97 months of imprisonment.

       Stefek objected to the PSR challenging inclusion of the 1990 conviction on the

ground that the Ohio state court incorrectly sentenced him to consecutive sentences, and

had the court not erred, this sentence would fall outside the fifteen-year statute of

limitations2 for the career offender provision. Stefek contended that a sentence that was

unlawfully imposed could not serve as the basis of his designation as a career offender.

Prior to sentencing, the District Court issued a Memorandum Order and Tentative

Findings and Rulings concluding that Stefek’s base offense level was 29 and his criminal

history category was VI. Additionally, the District Court issued an Addendum to

Tentative Findings and Rulings which rejected Stefek’s challenge to the PSR on the

ground that he could not collaterally attack his 1990 state court sentence during federal

sentencing proceedings.

       At sentencing, Stefek began by arguing that the District Court could, in its

discretion, vary downward from the guidelines sentence by disregarding the career

offender designation. The District Court explained that it had ruled on that issue in its


   2
      A sentencing court may not consider sentences served for prior crimes of violence
that fall outside the fifteen-year statute of limitations. See U.S.S.G. § 4A1.2(e)(1)
(“[C]ount any prior sentence of imprisonment exceeding one year and one month,
whenever imposed, that resulted in the defendant being incarcerated during any part of
such fifteen-year period.”).

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Addendum and the District Court then adopted the findings of the Memorandum Order

and Addendum. Stefek again argued that it would be unfair and unreasonable to increase

his sentence based on the 1990 conviction. The District Court highlighted Stefek’s

history of continuous violations from age thirteen to the time of his bank robbery arrest,

noting that violence was involved in several instances. The District Court then explained

that:

              [W]hether or not we have some formal designation of that as
              career criminal or we don’t have a formal designation of it, as
              a matter of substance the fact of the matter is that it appears to
              the Court that this Defendant is a confirmed recidivist and
              that whenever he is out among the public he commits crimes.
              The [PSR] indicates that. So that’s what you should be
              addressing.

(A. 84.)

        To further emphasize the issue for defense counsel, the District Court explained:

              Forget about the guidelines for a moment. Let’s talk about - -
              let’s pretend that the guidelines don’t exist and what we have
              here today before - - standing before the Court is an
              individual whose latest crime was a crime of - - a serious
              crime of violence, to wit, bank robbery, and which follows a
              history of criminal activity dating from age 13.

              You have the [PSR] in front of you and there have been few
              cases that have come before this Court in the course of 30
              years I have been on the bench where a Defendant has had a
              less consistent pattern of criminal activity, which seems to
              indicate conclusively that the Defendant is a recidivist and,
              therefore, that the Court in determining an appropriate
              sentence under 3553(a) of Title 18 should consider as the
              most significant factor the need of the sentence to protect the
              public, to incapacitate the Defendant from his criminal

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              activity and preying on the public. That’s what I view to be
              this situation.

              Now, you convince me that that is wrong and not that we’re
              dealing with some unrealistic artificial designation by the
              framers of the guidelines.

(A. 85-86.)

       Stefek argued that all of his prior convictions except for the two that qualify him

for career offender status were thefts and that if given the lower sentence, he would be

fifty years old when released, at which point, it is believed that recidivism greatly

decreases. The gist of his argument was that excluding the 1990 conviction, all that he

has is a history of crimes of theft, and no matter how extensive, a criminal history of that

nature should not merit the enhancement that the PSR suggests. The District Court

rejected Stefek’s arguments, indicating that it was not moved to modify its Memorandum

Order or Addendum. (A. 98.) The District Court discussed Stefek’s lengthy criminal

history and indicated that he “does show a propensity to commit violent crimes.” (A.

99.) The District Court sentenced him to a 151-month term of imprisonment, the low

end of the advisory guidelines range.

II.    STANDARD OF REVIEW

       This Court reviews the procedural and substantive reasonableness of a district

court’s sentence for abuse of discretion. See United States v. Levinson, 543 F.3d 190,

195 (3d Cir. 2008). We review a sentence for substantive reasonableness to determine

“whether the final sentence, wherever it may lie within the permissible statutory range,

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was premised upon appropriate and judicious consideration of the relevant factors.”

United States v. Schweitzer, 454 F.3d 197, 204 (3d Cir. 2006). “If there are no

procedural errors, our substantive review is highly deferential and we will affirm ‘unless

no reasonable sentencing court would have imposed the same sentence on that particular

defendant for the reasons the district court provided.’” United States v. King, - - - F.3d

- - -, 2010 WL 1729733, *15 (3d Cir. 2010) (quoting United States v. Tomko, 562 F.3d

558, 568 (3d Cir. 2009)).

III.   DISCUSSION

       After United States v. Booker, 543 U.S. 220 (2005), district courts adhere to a

three-step process when sentencing defendants. First, they must “calculate a defendant’s

Guidelines sentence precisely as they would have before Booker.” United States v.

Gunter, 462 F.3d 237, 247 (3d Cir. 2006) (citing United States v. King, 454 F.3d 187,

196 (3d Cir. 2006)). Second, they must “formally rul[e] on the motions of both parties

and stat[e] on the record whether they are granting a departure and how that departure

affects the Guidelines calculation, and tak[e] into account [our] Circuit’s pre-Booker case

law, which continues to have advisory force.” Id. “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.” Id. (internal citations omitted).

       Stefek contends that his sentence is procedurally unreasonable because the District


                                              6
Court erred in calculating the advisory guidelines range by including the 1990 conviction

in designating him as a career offender. Stefek concedes that the sentence imposed for

his 1990 conviction expired on August 2, 1994, which was within the statute of

limitations; however, Stefek contends that the sentence was unlawfully imposed and had

the Ohio state court followed the law, his sentence would have expired outside the statute

of limitations and would not have been included in the career offender calculation, which

would have resulted in him not being designated a career offender.

       This contention lacks merit. The District Court rejected Stefek’s variance

argument in the Addendum in detail, correctly explaining that defendants cannot

collaterally attack state court sentences in federal sentencing proceedings. See United

States v. Galvan, 453 F.3d 738, 741 (6th Cir. 2006) (“Even if Galvan’s interpretation of

[state sentencing law] is correct, however, the district court at sentencing need not

collaterally review Galvan’s prior sentences.”); United States v. Saya, 247 F.3d 929, 940

(9th Cir. 2001) (rejecting defendant’s challenge to a prior state sentence and affirming

the District Court’s designation of defendant as a career offender); see also U.S.S.G. §

4A1.2, cmt. n.6 (“With respect to the current sentencing proceeding, this guideline and

commentary do not confer upon the defendant any right to attack collaterally a prior

conviction or sentence beyond and such rights otherwise recognized in law . . . .”).

       Stefek also asserts that his sentence is procedurally unreasonable because the

District Court ignored his argument for a downward variance and failed to address why it


                                              7
rejected that argument. Contrary to this assertion, the District Court adequately

addressed the variance argument during sentencing. The District Court explained that it

had already ruled on the variance argument based solely on the 1990 conviction. The

District Court instructed Stefek to address the totality of his criminal history and how that

should affect his sentence, rather than focusing solely on the 1990 conviction. Stefek

modified his argument slightly, but the primary focus remained on the 1990 conviction.

In rejecting his variance argument, the District Court explained that Stefek failed to

persuade it to modify its Memorandum Order and Addendum (A. 98) and that Stefek

failed to negate the effects of his thirty-year criminal history, which shows “a propensity

to commit violent crimes” (A. 99). The District Court referred to the PSR, which set

forth Stefek’s extensive criminal history, spanning nearly thirty years.

       Finally, Stefek contends that his sentence is substantively unreasonable as the

District Court ignored certain factors it is required to consider under § 3553(a) and

improperly attached greater weight to certain other factors. In particular, Stefek asserts

that the District Court improperly gave greater weight to concerns of recidivism,

deterrence, and protection of the public (§ 3553(a)(2)(B), (C)), while ignoring the need

to avoid unwanted sentencing disparities among similarly situated defendants

(§ 3553(a)(6)).

       This contention, too, lacks merit. The District Court imposed a sentence at the

low end of the advisory guidelines, which is reasonable, given the circumstances of this


                                             8
case. For the past thirty years, when not incarcerated, Stefek rarely went more than a few

months without committing a crime. The PSR indicates that in addition to the two

crimes of violence upon which the career offender designation was based, Stefek was

convicted of other crimes in which threats, violence, or the use of weapons were alleged.

It was not unreasonable to sentence Stefek as a career offender.

       The District Court did not err in directing counsel to address recidivism, which

likely was the most troubling factor in determining the appropriate sentence. The District

Court stated that Stefek’s criminal record was one of the most extensive that it had

encountered in thirty years on the bench and reasonably asked counsel to address its

concerns regarding recidivism, deterrence, and public safety. Moreover, the District

Court’s decision to sentence Stefek at the low end of the guidelines range accounts for

sentencing disparities among similarly situated defendants. There is nothing in the

record to suggest that this sentence, which is at the bottom of the advisory guidelines

range, is unreasonable. Cf. United States v. Cooper, 437 F.3d 324, 331 (3d Cir. 2006)

(explaining that “it is less likely that a within-guidelines sentence, as opposed to an

outside-guidelines sentence, will be unreasonable ”), abrogated on other grounds by Gall

v. United States, 552 U.S. 38, 51 (2007).

IV.    CONCLUSION

       For the reasons set forth above, we will affirm the judgment of the District Court.




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