                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-13-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4754




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                                                      NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                            No. 07-4754


                 UNITED STATES OF AMERICA

                                 v.

                       DERRICK KENRICK
                        a/k/a Charles Salter

                          Derrick Kenrick,
                                     Appellant


           On Appeal from the United States District Court
              for the Western District of Pennsylvania
                    (D.C. Crim. No. 04-cr-00291)
               District Judge: Hon. Arthur J. Schwab


             Submitted Under Third Circuit LAR 34.1(a)
                         January 12, 2009

     Before: SLOVITER and BARRY, Circuit Judges, and
                POLLAK * , District Judge

                      (Filed: January 13, 2009)


                             OPINION



       *
        Hon. Louis H. Pollak, Senior Judge, United States District
Court for the Eastern District of Pennsylvania, sitting by
designation.
SLOVITER, Circuit Judge.

                                              I.

       Derrick Kenrick pled guilty pursuant to a plea agreement to traveling with an

intent to engage in illicit sexual conduct in violation of 18 U.S.C. § 2423(b) and was

sentenced to 46 months imprisonment, followed by a life term of supervised release.

Kenrick appeals the length of the term of supervised release authorized by the plea

agreement.1

                                              II.

       In May 2002, Kenrick began chatting with the victim, who was then 13 years old,

in an internet chat room. Kenrick and the victim chatted on a frequent basis for

approximately two years, and in 2004, having proposed marriage, Kenrick traveled to

Pennsylvania to see her. He soon began living in the victim’s home, giving her family

cash, furniture, and other valuable gifts. During this time, he engaged in some sexual

contact with the victim, apparently short of sexual intercourse. Kenrick was eventually

told by the victim’s parents to leave the victim alone, and he responded by threatening the

victim’s mother and falsely claiming to be a member of the armed forces and a police

officer. Kenrick was apprehended in October 2004 and indicted for violating 18 U.S.C. §

2423(b).




                     1
                      This court has jurisdiction over this appeal pursuant to 28
              U.S.C. § 1291.

                                              2
       Pursuant to a plea agreement entered on July 7, 2005, Kenrick pled guilty to the

charged offense. He was sentenced to 46 months imprisonment, followed by a life term

of supervised release. Kenrick appealed the length and conditions of the supervised

release and this court vacated the supervised release condition, holding, inter alia, that the

District Court gave insufficient reasons for the imposition of the life term.

       On remand, the District Court again sentenced Kenrick to a life term of supervised

release, and Kenrick again appeals. This court exercises de novo review over the

enforcement and interpretation of plea agreements, and Kenrick must prove a breach of

the Plea Agreement by a preponderance of the evidence. United States v. Williams, 510

F.3d 416, 424 (3d Cir. 2007).

                                             III.

       A brief overview of the relevant Plea Agreement provisions is necessary before

analyzing the issues raised in Kenrick’s appeal. Paragraph C.1 of the Plea Agreement

states, “[t]he penalty that may be imposed upon Derrick Kenrick is: . . . (c) A term of

supervised release of up to life, 18 U.S.C. §3583(k).” App. at 75-76. Paragraph C.3 of

the Plea Agreement states, “[t]he parties stipulate that the November 1, 2004, Sentencing

Guidelines are applicable in this case.” Lastly, paragraph C.4 states, “[t]he parties agree

that a sentence at the upper end of the guideline range is reasonable in this case.” App. at

76.

       The gravamen of Kenrick’s claim is that the Plea Agreement does not authorize a



                                              3
life term of supervised release because the term “sentence,” as it appears in paragraph C.4

of the Plea Agreement, refers only to imprisonment, not supervised release. However, the

plain language of the plea agreement supports the District Court’s conclusion that the

parties agreed to a life term of supervised release. Plea agreements are analyzed under

contract law standards, United States v. Nolan-Cooper, 155 F.3d 221, 236 (3d Cir. 1998),

and, therefore, this court must “examine the plain meaning of the agreement itself and

construe any ambiguities in the agreement against the government as drafter.” Williams,

510 F.3d at 424-25.

       There is no ambiguity regarding Kenrick’s “sentence,” nor does Kenrick proffer

any other reasonable interpretation of that term. A “sentence” encompasses many forms

of punishment, including imprisonment and supervised release, and Kenrick cannot point

to any language in the Plea Agreement indicating otherwise. Likewise, it strains common

understanding to restrict the term “sentence” to mean only the length of imprisonment.

See T HE A MERICAN H ERITAGE C OLLEGE D ICTIONARY 1242 (defining “sentence” as “a

judicial decision of the punishment to be inflicted on one adjudged guilty”) (3d ed. 1993).

       Moreover, in paragraph C.1, Kenrick and the government agreed that the “penalty”

to be imposed on Kenrick includes (a) imprisonment; (b) a fine; (c) supervised release;

(d) a special assessment; and (e) mandatory restitution. Because Kenrick’s “penalty,” by

agreement, encompasses supervised release, the term “sentence,” which is after all the

penalty, necessarily does as well.



                                             4
       After a careful reading of the Plea Agreement, it is evident that the Plea

Agreement is unambiguous and the term “sentence” was intended to encompass more

than just the length of imprisonment. Supervised release is a part of Kenrick’s “sentence”

and the guidelines not only authorize a court to impose a life sentence of supervised

release for sex offenses but expressly recommend it. U.S.S.G. § 5D1.2 (Policy

Statement) (“If the instant offense of conviction is a sex offense, however, the statutory

maximum term of supervised release is recommended.”).

       Finally, when this case was before us previously we remanded this issue, saying

              While we are mindful that the 2004 Sentencing Guidelines
              expressly provide for the possibility of a lifetime term of
              supervised release for Kenrick’s offense, inasmuch as the
              district court did not provide adequate reasons for its decision,
              we also will vacate this provision of the sentence and remand
              the case so that the court may reconsider this issue during
              Kenrick’s resentencing as well.

United States v. Kenrick, 241 Fed. Appx. 10, 17-18 (3d Cir. 2007). On resentencing, the

District Court stated, inter alia, that (1) the maximum life term of supervised release

“counterbalances the otherwise too lenient term of imprisonment” to which the parties

agreed; (2) the victim was only 13 years old when Kenrick contacted her; (3) he worked

to meet other young girls on internet chat rooms and deceived them to garner their

sympathy; (4) he threatened the victim’s mother; and (5) lifetime supervision is the

recommended term of supervised release for sex offenders such as Kenrick. We note that

we are satisfied that the District Court provided adequate reasons for imposing a life term



                                              5
of supervised release on remand.

                                           IV.

       For the above mentioned reasons, we will affirm the District Court’s sentence of a

life term of supervised release.




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