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


2-29-2008

USA v. Smalley
Precedential or Non-Precedential: Precedential

Docket No. 06-4552




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                                   PRECEDENTIAL

   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT
                ______

                 No. 06-4552
                   ______

       UNITED STATES OF AMERICA

                         v.

            RODNEY SMALLEY,

                       Appellant
                    ______

On Appeal from the United States District Court
           for the District of New Jersey
         (D.C. Criminal No. 06-cr-00527)
District Court Judge: Honorable Robert B. Kugler
                      ______

         Argued on December 13, 2007

 Before: RENDELL, GREENBERG, and VAN
        ANTWERPEN, Circuit Judges.

           (Filed February 29, 2008)
Richard Coughlin, Esq.
Lori M. Koch, Esq. (Argued)
Office of Federal Public Defender
800-840 Cooper Street
Suite 350
Camden, New Jersey 08102

      Counsel for Appellant

George S. Leone, Esq.
Office of United States Attorney
970 Broad Street
Room 700
Newark, New Jersey 07102

Glenn J. Moramarco, Esq. (Argued)
Office of United States Attorney
Camden Federal Building & Courthouse
401 Market Street
P.O. Box 2098, Fourth Floor
Camden, New Jersey 08101

      Counsel for Appellee

                          ______

                OPINION OF THE COURT
                        ______

VAN ANTWERPEN, Circuit Judge.


                              1
       Appellant Rodney Smalley appeals his sentence of 71
months entered by the District Court for the District of New
Jersey for bank robbery. In arriving at this sentence, the
District Court applied a four-level Guidelines sentencing
enhancement, finding that Smalley “otherwise used” a
dangerous weapon during the course of the robbery.
However, the Government concedes, and we agree, that the
District Court should have applied only a three-level
enhancement for “brandish[ing] or possess[ing]” a dangerous
weapon. In its “Amended Judgment,” which was filed
fourteen days after the pronouncement of the original
sentence, the District Court attempted to provide an
alternative sentence of 71 months under the three-level
“brandished or possessed” enhancement. Because the District
Court’s filing of this “Amended Judgment” does not render
the enhancement calculation error harmless, we will vacate
the sentence and remand to the District Court for resentencing
in accordance with this opinion.

                         I. FACTS

       On March 21, 2006, appellant/defendant Rodney
Smalley entered the Cape Savings Bank in Middle Township,
New Jersey, and approached the counter. Smalley told the
bank teller, “I want the money, I got a knife.” Smalley
simultaneously gave the teller a note which read, “Give me all
the money now or I will stab you.” As a result, the teller
handed Smalley $745. Smalley fled the bank after receiving
the money, and subsequently was hit by a car. Smalley was
arrested in the bank parking lot and the FBI recovered all of
the money.

                              2
        A single count information was filed against Smalley
on July 14, 2006, charging him with bank robbery by force or
violence, in violation of 18 U.S.C. § 2113(a). Smalley waived
his right to indictment by a grand jury and pled guilty to the
information that same day.

        The District Court held a sentencing hearing on
October 18, 2006. At the sentencing hearing, the only
Guidelines sentencing issue for the Court to resolve was
whether Smalley should receive a three-level enhancement for
“brandish[ing] or possess[ing]” a dangerous weapon during
the robbery,1 or a four-level enhancement for “otherwise
us[ing]” a dangerous weapon during the robbery.2 Both
parties concede that Smalley possessed a knife and threatened
to stab the bank teller with the knife. Both parties also
concede, however, that the knife remained in Smalley’s
pocket during the entire robbery and was never visible to the
teller.

       Smalley and the Government both argued at sentencing
that Smalley only “brandished or possessed” the knife, and
therefore should only receive a three-level enhancement under
§ 2B3.1(b)(2)(E). The Probation Officer, however, in his
Presentence Investigation Report (“PSR”), applied a four-
level enhancement under § 2B3.1(b)(2)(D), concluding that
Smalley “otherwise used” the knife when he provided the


      1
          Pursuant to U.S.S.G. § 2B3.1(b)(2)(E).
      2
          Pursuant to U.S.S.G. § 2B3.1(b)(2)(D).

                               3
bank teller with a note threatening to stab her if she did not
give him the money. (PSR ¶17.) The District Court accepted
the recommendation from the Probation Officer and applied
the four-level enhancement for “otherwise using” a dangerous
weapon.

       Given the application of the four-level enhancement,
Smalley had a total offense level of 23, a Criminal History
category of III, and a corresponding Guidelines range of 57 to
71 months.3 (PSR ¶97.) After consideration of all of the
sentencing factors under 18 U.S.C. § 3553(a), the District
Court exercised its discretion and sentenced Smalley to a 71-
month term of imprisonment, which was at the upper end of
the Guidelines range. This sentence was based upon threats
Smalley made during the bank robbery, his extensive criminal
history, and his likelihood of recidivism.

        The District Court entered its final judgment of
sentence on October 19, 2006. On October 23, 2006, Smalley
filed a timely notice of appeal. On that same date, the
Government hand-delivered a letter to the District Court
requesting that the Court file an amended judgment in which
the Court would explain (in the “Statement of Reasons”
section) that it would have imposed the same sentence even if
the Court applied only the three-level enhancement for
“brandishing.” In addition, the Government also requested


      3
        If the District Court had applied only a three-level
enhancement for “brandish[ing] or possess[ing],” Smalley’s
advisory Guidelines range would have been 51 to 63 months.

                              4
that the amended judgment be filed by October 25, 2006, in
order to comply with the time restriction contained in Federal
Rule of Criminal Procedure 35(a). 4 (App. 82-83.)

        On November 2, 2006, fourteen days after sentencing
and outside the time limit set by Rule 35(a), the District Court
filed an Amended Judgment and attempted to state an
alternative sentence in the event that only a three-level
enhancement was appropriate. This appeal followed.

                     II. JURISDICTION

        The District Court of New Jersey had subject matter
jurisdiction under 18 U.S.C. § 3231. This Court has appellate
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §
3742(a). Smalley’s appeal was timely filed under Federal
Rule of Appellate Procedure 4(b)(1) because it was filed
within 10 days of the District Court’s original judgment.

                      III. DISCUSSION

A. The Calculation Error

       As the Supreme Court has stated, “the Guidelines
should be the starting point and the initial benchmark” in
determining the appropriate sentence. Gall v. United States,


       4
         “Within 7 days after sentencing, the court may correct
a sentence that resulted from arithmetical, technical, or other
clear error.” Fed. R. Crim. P. 35(a).

                               5
128 S. Ct. 586, 596 (2007); see also United States v. Goff, 501
F.3d 250, 257 (3d Cir. 2007) (“Because the Guidelines reflect
the collected wisdom of various institutions, they deserve
careful consideration in each case.... [T]hey cannot be
ignored.”). Prior to, but consistent with Gall, this Court set
forth a three-part process for determining a sentence. Under
United States v. Gunter, district courts must begin with a
correct Guidelines calculation and reason from that starting
point to the appropriate sentence based on the facts of the
individual case and the exercise of the District Court’s
discretion pursuant to 18 U.S.C. § 3553. United States v.
Gunter, 462 F.3d 237, 247 (3d Cir. 2006); see also United
States v. Jackson, 467 F.3d 834, 838 n.4 (3d Cir. 2006)
(“[W]e require that the entirety of the Guidelines calculation
be done correctly.”). Therefore, in accordance with the
dictates of the Supreme Court and this Court, a district court
errs when it fails to calculate the Guidelines range correctly or
begins from an improper Guidelines range in determining the
appropriate sentence. See United States v. Langford, --- F.3d
--- (3d Cir. 2008) for a more extensive discussion of the
requirement that District Courts start the sentencing process
by properly calculating the applicable Guidelines range.

       In arriving at a within-the-Guidelines sentence of 71
months, the District Court applied the four-level enhancement
for “otherwise us[ing]” a dangerous weapon during the course
of a bank robbery pursuant to U.S.S.G. § 2B3.1(b)(2)(D). On
appeal, however, the Government concedes that the proper
enhancement to be applied in this situation was the three-level
enhancement for “brandish[ing] or possess[ing]” a dangerous
weapon pursuant to U.S.S.G. § 2B3.1(b)(2)(E). Because this

                               6
Court agrees with the Government, we accept the
Government’s concession and conclude that the District Court
erred in its calculation and application of the Guidelines
range. Given the error in calculating the appropriate
Guidelines range, we must remand to the District Court for
resentencing pursuant to the correctly calculated Guidelines
range unless we determine the calculation error to be
harmless.

B. Harmless Error Analysis

        Error in the application of the Guidelines does not
automatically require remand for resentencing. “[O]nce the
court of appeals has decided that the district court misapplied
the Guidelines, a remand is appropriate unless the reviewing
court concludes, on the record as a whole, that the error was
harmless, i.e., that the error did not affect the district court’s
selection of the sentence imposed.” United States v. Thayer,
201 F.3d 214, 229 (3d Cir. 1999) (citing Williams v. United
States, 503 U.S. 193, 203 (1992)). In deciding whether the
alleged error was harmless, “a court of appeals must decide
whether the district court would have imposed the same
sentence had it not relied upon the invalid factor or factors.”
Williams, 503 U.S. at 203. The proponent of the sentence has
the burden of persuading “the court of appeals that the district
court would have imposed the same sentence absent the
erroneous factor.” Id.

      Here, the District Court attempted to amend its
judgment after the sentencing hearing to indicate that it would
have given the same sentence (71 months) to Smalley if it had

                                7
applied the three-level “brandished or possessed”
enhancement instead of the four-level “otherwise used”
enhancement.5 Initially, we must determine whether we may
consider the “Amended Judgment” in determining whether
the calculation error was harmless. Because the “Amended
Judgment” is not proper under either the Federal Rules of
Criminal Procedure or this Court’s Local Rules, we will not
consider the alternative sentence set forth in the “Amended
Judgment.”

        The Government suggests that the “Amended
Judgment” is proper based on Federal Rules of Criminal
Procedure 35 and 36. Federal Rule 35 contains a seven-day
filing deadline. See Fed. R. Crim. P. 35. The District Court
clearly did not comply with this deadline, as it filed its
“Amended Judgment” fourteen days after the pronouncement
of its original sentence. Thus, the “Amended Judgment” is
not proper under Rule 35. Federal Rule 36 permits the
correction of a “clerical error” in a judgment. See Fed. R.
Crim. P. 36. An alternative sentence, especially that filed in


       5
         This Court notes that nothing in this opinion should be
construed as discouraging the practice of District Court judges
providing alternative sentences. We believe this practice, when
performed at the time of sentencing, in compliance with the
appropriate procedure, and supported by appropriate
justification, is acceptable. See United States v. Hill, 411 F.3d
425, 426 (3d Cir. 2005); United States v. Dickerson, 381 F.3d
251, 260 n.9 (3d Cir. 2004); United States v. Nathan, 188 F.3d
190, 201 (3d Cir. 1999).

                               8
this case, cannot reasonably be construed to constitute a
“clerical error.” United States v. Bennett, 423 F.3d 271, 277-
78 (3d Cir. 2005) (“A clerical error involves a failure to
accurately record a statement or action by the court or one of
the parties.”) (internal quotation omitted). Therefore, the
“Amended Judgment” is not proper under Rule 36. See id. at
278 (“Rule 36 does not authorize the sentencing court to
correct a sentence imposed in violation of law, as a result of
an incorrect application of the sentencing Guidelines, or to
otherwise substantively modify sentences.”) (internal
quotation omitted).

        The Government also suggests that the District Court’s
“Amended Judgment” is proper under Third Circuit Local
Appellate Rule 3.1. This Local Rule allows the District Court
to file a “written amplification of a prior written or oral
recorded ruling or opinion” within fifteen days of the filing of
the notice to appeal. See L.A.R. 3.1. Although this
“Amended Judgment” was timely filed under L.A.R. 3.1, it
does not constitute an amplification of the District Court’s
prior ruling as contemplated by L.A.R. 3.1. See, e.g., In re
United States, 273 F.3d 380, 382 n.2 (3d Cir. 2001)
(interpreting L.A.R. 3.1 to permit the “district judge to file an
opinion or memorandum to explain an order or decision”)
(emphasis added). The “Amended Judgment” did not in any
way seek to explain or clarify the District Court’s reasons for
imposing the original 71 month sentence under the
improperly-calculated Guidelines range. Cf. United States v.
Bennett, 161 F.3d 171, 186 (3d Cir. 1998) (permitting the
consideration of a supplementary memorandum where the
memorandum simply contained a “more comprehensive

                                9
explanation of the District Court’s factual findings and
conclusions of law”). We permit this type of amplification to
inform the appellate review of the reasons for the sentence.
Counsel are not given an opportunity to challenge it as it
should consist of explanation, not a new ruling. Here, the
amendment added a new concept without counsel having an
opportunity to address it. That goes beyond the intent of the
rule. Thus, the “Amended Judgment is not proper under
Local Rule 3.1, despite its timeliness.

        Because the “Amended Judgment” does not comply
with any of the applicable Federal or Local rules, we will not
consider it in determining whether the improper use of the
“otherwise used” enhancement was harmless error. Absent
the statements in the “Amended Judgment,” then, there is
nothing in the record to indicate that the District Court would
have imposed the same sentence under the correctly
calculated Guidelines range. Thus, the calculation error is not
harmless because the Government has failed to carry its
burden of showing that the District Court would have
sentenced Smalley to 71 months using the correct Guidelines
range. See Williams, 503 U.S. at 203 (discussing the burden
of showing the alleged error was harmless).

       Moreover, even if we were to consider the Amended
Judgment as the government requests, in order for the
calculation error to be harmless, the alternative sentence in the
Amended Judgment would still have to comply with the
sentencing procedures set forth by the Supreme Court and this



                               10
Circuit.6 See Gall v. United States, 128 S. Ct. 586, 594
(2007); United States v. Cooper, 437 F.3d 324, 326 (3d Cir.
2006). It fails to do so.

       The Supreme Court, in Gall, broke the sentencing
review process into two parts.7 First, the reviewing court
must “ensure that the district court committed no significant
procedural error, such as 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. Second, the reviewing court must


       6
         We note that in order for an alternative sentence to
render an initial Guidelines calculation error harmless, the
alternative sentence generally must comply with the procedural
framework set forth in Gunter. Therefore, if a district court
wishes to provide for the possibility that a different Guidelines
calculation applies by handing down an alternative sentence, it
must still begin by determining the correct alternative
Guidelines range and properly justify the chosen sentence.
       7
        Gall’s breakdown of the sentencing review process into
procedural and substantive components appears to be consistent
with our approach to the review process. See United States v.
Lessner, 498 F.3d 185, 203 (3d Cir. 2007) (“We review a
sentence for reasonableness, evaluating both its procedural and
substantive underpinnings.”).

                               11
then “consider the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.” Id. In this
case, because we find errors in the “procedural” component of
the review process, we express no opinion on the substantive
reasonableness of a 71-month sentence for this particular
crime.

        The District Court, in the Amended Judgment, stated
that it would have given Smalley the same sentence - 71
months - even if it had employed the “brandished or
possessed” enhancement.8 Applying the three-level
“brandished or possessed” enhancement in the instant case
leads to a properly calculated Guidelines range of 51 to 63
months. Thus, the 71-month sentence would constitute an
upward departure or a variance which, under Gall, must be


       8
         The District Court stated in the Amended Judgment:
“The Court notes that it ruled in favor of the enhancement at
U.S.S.G. §2B3.1(b)(2)(E), warranting only a three-level
reduction instead of a four-level reduction at U.S.S.G.
§2B3.1(b)(2)(D), the Court would have imposed the same
sentence, 71 months.” (App. 7.)          This statement in the
Amended Judgment is somewhat confusing for the following
reasons. This case concerns a three- or four-level enhancement,
but the Amended Judgment form refers to a three- or four-level
sentence “reduction.” Additionally, the District Court initially
imposed a four-level enhancement; but, the Court indicates in
the Amended Judgment form that it “ruled in favor of the
enhancement at U.S.S.G. §2B3.1(b)(2)(E),” which would be a
three-level enhancement.

                              12
explained.

        As discussed in Part III.A, supra, Gall, Gunter, and our
recent decision in Langford require starting with the correctly-
calculated Guidelines range. In this case, the brief “Amended
Judgment” did not explicitly set forth an alternative
Guidelines range. In addition, nothing in the record suggests
that the District Court properly determined the alternative
Guidelines range. The District Court’s bald statement that it
would have given Smalley a 71-month sentence even had it
applied the three-level enhancement is not sufficiently
detailed to comply with the first step of Gunter. See Gunter,
462 F.3d at 247; see also Gall, 128 S. Ct. at 597 (“[D]istrict
courts must begin their analysis with the Guidelines and
remain cognizant of them throughout the sentencing
process.”). This procedural error in failing to set forth an
alternative range as part of the alternative sentence would
preclude this Court from concluding that the erroneous
application of the “otherwise used” enhancement was
harmless if we were to consider the “Amended Judgment.”

        In addition, the District Court also committed
procedural error in sentencing by failing to properly justify its
brief alternative sentence. Gall stated that it is procedural
error to “fail[] to adequately explain the chosen sentence.”
Gall, 128 S. Ct. at 597. The procedural requirement of
adequate explanation of sentences includes requiring district
courts to provide “an explanation for any deviation from the




                               13
Guidelines range.” 9 Id.; Gunter, 462 F.3d at 247 (requiring
district courts to “stat[e] on the record whether they are
granting a departure and how that departure affects the
Guidelines calculation”) (citation omitted); Cooper, 437 F.3d
at 329 (stating that “[t]he record must demonstrate the trial
court gave meaningful consideration to the § 3553(a)
factors.”).


       9
          In Gall, the Supreme Court explicitly rejected formal
proportionality schemes. See Gall, 128 S. Ct. at 594-95. In
particular, the Court held that rules requiring “extraordinary
circumstances” or application of a rigid mathematical formula
to justify a non-Guidelines sentence were “inconsistent with the
rule that the abuse-of-discretion standard of review applies to
appellate review of all sentencing decisions–whether inside or
outside the Guidelines range.” Id. at 596. To the extent that we
adopted such a formal rule of proportionality in United States v.
Manzella, Gall requires that we no longer follow that rule. See
United States v. Manzella, 475 F.3d 152, 161 (3d Cir. 2007)
(“Moreover, the more that a sentence varies from the advisory
Guidelines range, the more compelling the supporting reasons
must be.”).
        The Supreme Court did state, however, that “appellate
courts may therefore take the degree of the variance into account
and consider the extent of a deviation from the Guidelines.”
Gall, 128 S. Ct. at 594-95. Because of the appellate court’s duty
to review the sentence for reasonableness, Gall made it clear
that “failing to a dequately e xpla in the c hose n
sentence–including an explanation for any deviation from the
Guidelines” was procedural error. Id. at 597.

                               14
        Here, the District Court committed procedural error
because the alternative sentence is a bare statement devoid of
any justification for deviating eight months above the upper-
end of the properly calculated Guidelines range.10 Such a
bare statement is at best an afterthought, rather than an
amplification of the Court’s sentencing rationale. Without
any justification for sentencing Smalley to 71 months
pursuant to the three-level “brandished or possessed”
enhancement, this Court could not have engaged in any
meaningful review of the reasonableness of the sentence. See
Gall, 128 S. Ct. at 597 (noting that the district court “must
adequately explain the chosen sentence to allow for
meaningful appellate review”). This procedural error, like the
failure to begin with a properly-calculated Guidelines range,
likewise would preclude this Court from concluding that the
erroneous use of the “otherwise used” enhancement was
harmless error.

       In light of the District Court’s failure to comply with
the applicable Federal and Local procedural rules, and,
alternatively, in light of the failure of the District Court to
comply with the sentencing procedures set forth in Gall and
Gunter in articulating its alternative sentence, we cannot


       10
           In fact, in sentencing Smalley to a within-the-
Guidelines sentence of 71 months, initially pursuant to the
“otherwise used” enhancement, the District Court stated
“[h]aving reviewed all those factors under the Statute, having
reviewed the Guidelines, I do think a Guideline sentence is
called for in this case.” (App. 73-74.) This language indicates
that the District Court agreed with the Guidelines range when
using the four-level “otherwise used” enhancement, and there is
insufficient reasoning provided to justify an alternative non-
Guidelines sentence under the three-level “brandished or
possessed” enhancement.

                               15
conclude that the initial Guidelines calculation error
committed by the learned District Judge was harmless.

                     IV. CONCLUSION

        We have considered all other arguments made by the
parties on appeal, and conclude that no further discussion is
necessary. For the foregoing reasons, we will remand this
case to the District Court for resentencing in accordance with
this opinion.




                              16
