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


11-9-2006

USA v. Charles
Precedential or Non-Precedential: Precedential

Docket No. 05-5326




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                                  PRECEDENTIAL

UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT


               No. 05-5326




    UNITED STATES OF AMERICA

                     v.

        RANDOLPH CHARLES,

                          Appellant



Appeal from the United States District Court
  for the Middle District of Pennsylvania
 (D.C. Criminal Action No. 04-CR-00181)
  District Judge: Honorable Malcolm Muir




Submitted Under Third Circuit LAR 34.1(a)
           September 28, 2006
       Before: McKEE and AMBRO, Circuit Judges
    RESTANI,* Chief Judge, Court of International Trade


             (Opinion filed November 9, 2006)


James V. Wade
  Federal Public Defender
Ronald Krauss
  Assistant Federal Public Defender-Appeals
Middle District of Pennsylvania
100 Chestnut Street, Suite 306
Harrisburg, PA 17101

      Counsel for Appellant

Thomas A. Marino
  United States Attorney
Theodore B. Smith, III
  Assistant United States Attorney
  Chief, Criminal Appeals
United States Attorney’s Office
228 Walnut Street, Suite 220
Harrisburg, PA 17108

      Counsel for Appellee


      *
       Honorable Jane A. Restani, Chief Judge, United States
Court of International Trade, sitting by designation.

                              2
                OPINION OF THE COURT


AMBRO, Circuit Judge

       Randolph Charles appeals his sentence from a conviction
in the United States District Court for the Middle District of
Pennsylvania for possession of a prohibited object by an inmate.
At issue is whether his sentence—a prison term of 46 months,
which is at the highest end of the Federal Sentencing Guidelines
range for the underlying offense—is reasonable in light of
United States v. Booker, 543 U.S. 220 (2005). We review the
sentence for reasonableness and, for the reasons set forth below,
affirm it.

       I. Facts and Procedural History

       At the time of the underlying incident for which Charles
was convicted and sentenced, he was an inmate at the United
States Penitentiary in Lewisburg, Pennsylvania. On November
20, 2003, he submitted to a compulsory strip search conducted
by a correctional officer. During that search, the officer
discovered that Charles possessed a six-inch piece of sharpened
plastic (a plastic “knife”). On May 26, 2004, a grand jury
returned a one-count indictment for possession of a prohibited
object by an inmate in violation of 18 U.S.C. §§ 1791(a)(2),


                               3
(d)(1)(B) & (d)(2).1 Charles pled guilty to the charge at a plea
hearing before the District Court on July 21, 2004.2

        Under the then-mandatory United States Sentencing
Guidelines, the District Judge determined that Charles was a
career offender, which placed him in a Guidelines imprisonment
range of 37 to 46 months, two to three years’ supervised release,
a fine of $4,000 to $40,000, and a mandatory special assessment
of $100. On September 1, 2004, the Judge waived all fines and
sentenced Charles to 46 months’ imprisonment, three years’
supervised release, and the mandatory $100 special assessment.



       Charles appealed to us, arguing, inter alia, that
mandatory application of the Guidelines was unconstitutional.
We affirmed the judgment of conviction but remanded for
resentencing in accordance with Booker, which eliminated the


       1
        The statute as referenced in the Judgment of the District
Court from which Charles appeals reads “18 U.S.C.
§§ 1791(a)(2), (d)(1)(B) & 2.” While the “& 2” reference is
unclear, we take it to mean § 1791(d)(2) (defining “destructive
device” according to its meaning at 18 U.S.C.
§ 921(a)(4)(B)–(C)).
       2
       Charles initially entered a plea of not guilty. However,
he subsequently withdrew that plea, submitted a statement that
he did not dispute the facts of the case as the Government
presented them, and pled guilty.

                               4
mandatory aspect of the Guidelines. The District Court imposed
the same sentence as before.

        Charles is back before us on appeal. He asserts that the
sentence is unreasonable because the District Court failed to
articulate its consideration of the sentencing factors in 18 U.S.C.
§ 3553(a).3 He requests that we vacate the sentencing judgment



       3
        Those factors are:
       (1) the nature and circumstances of the offense and the
       history and characteristics of the defendant;
       (2) the need for the sentence imposed–
               (A) to reflect the seriousness of the offense, to
               promote respect for the law, and to provide just
               punishment for the offense;
               (B) to afford adequate deterrence to criminal
               conduct;
               (C) to protect the public from further crimes of
               the defendant; and
               (D) to provide the defendant with needed
               educational or vocational training, medical care,
               or other correctional treatment in the most
               effective manner;
       (3) the kinds of sentences available;
       (4) the kinds of sentence and the sentencing range
       established for–
               (A) the applicable category of offense committed
               by the applicable category of defendant as set
               forth in the guidelines . . .;

                                5
and remand for resentencing.4

                   II. Standard of Review

       After Booker, the Guidelines have only advisory force
and appellate courts must review sentences for reasonableness
according to the “relevant [Section 3553(a)] factors” that guide
sentencing. 543 U.S. at 234; cf. United States v. King, 454 F.3d
187, 194 (3d Cir. 2006); Cooper, 437 F.3d at 327–28. We have



      (5) any pertinent policy statement . . . issued by the
      Sentencing Commission . . . that . . . is in effect on the
      date the defendant is sentenced[;]
      (6) the need to avoid unwarranted sentence disparities
      among defendants with similar records who have been
      found guilty of similar conduct; and
      (7) the need to provide restitution to any victims of the
      offense.
18 U.S.C. § 3553(a).
       4
        The District Court had subject matter jurisdiction over
this case pursuant to 18 U.S.C. § 3231 (granting jurisdiction for
“offenses against the laws of the United States”). We have
jurisdiction to review Charles’s sentence for “reasonableness”
under 18 U.S.C. § 3742(a)(1) (authorizing the appeal of
sentences allegedly “imposed in violation of the law”) and 28
U.S.C. § 1291 (authorizing the appeal of final district court
decisions, including sentences). See United States v. Cooper,
437 F.3d 324, 327–28 & n. 4 (3d Cir. 2006).

                                6
interpreted Booker to require the following three steps:

       (1) Courts must continue to calculate a defendant’s
       Guidelines sentence precisely as they would have before
       Booker.

       (2) In doing so, they must formally rule on the motions of
       both parties and state on the record whether they are
       granting a departure and how that departure affects the
       Guidelines calculation, and take into account our
       Circuit’s pre-Booker case law, which continues to have
       advisory force.

       (3) 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.

United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006)
(internal citations and quotations marks omitted);5 cf. King, 454
F.3d at 194; Cooper, 437 F.3d at 330; see also United States v.
Jackson, No. 05-4091, slip op. at 7–8 (3d Cir. Nov. 9, 2006).


       5
        Note that, since it is incorporated into § 3553(a)(4), the
Guidelines sentencing range became just one of several factors
a district court must consider at step three of the sentencing
analysis. See Booker, 543 U.S. at 234; Gunter, 462 F.3d at 247;
King, 454 F.3d at 194; Cooper, 437 F.3d at 331.

                                7
                        III. Discussion

        Charles argues that his sentence is unreasonable for three
reasons. First, he contends that the District Court failed to
consider all of the § 3553(a) factors by not “fully and explicitly
articulat[ing]” its reasons for imposing the sentence when it
stated that it “carefully considered” those factors. App. Br. at
11–12, 13–14. Second, he asserts that the Court violated
§ 3553(a)’s “Parsimony Provision”—that sentences be
“sufficient, but not greater than necessary,” to meet the purposes
of sentencing set out in § 3553(a)(2). App. Br. at 9, 14 (quoting
United States v. Brown, 356 F. Supp. 2d 470, 479 (M.D. Pa.
2005)). Third, he argues that the Court impermissibly imposed
a sentence that “failed to avoid unwarranted sentence
disparities,” in violation of § 3553(a)(6). App. Br. at 13.

       Our recent post-Booker decisions dispose of Charles’s
arguments. We have held that, for us to assess reasonableness,
the record must demonstrate that the District Court gave
meaningful consideration to the “relevant [§ 3553(a)] factors.”
Cooper, 437 F.3d at 329 (emphasis added); see also Gunter, 462
F.3d at 247; King, 454 F.3d at 194. This demonstration does not
“require district judges to routinely state by rote that they have
read the Booker decision or that they know the sentencing
guidelines are now advisory.” Cooper, 437 F.3d at 329. Nor
does it require courts “to state on the record that [they] ha[ve]
explicitly considered each of the § 3553(a) factors or to discuss
each of the § 3553(a) factors.” Id. (quoting United States v.

                                8
Scott, 426 F.3d 1324, 1329 (11th Cir. 2005)). Rather, courts
“should observe the requirement to state adequate reasons for a
sentence on the record so that [we] can engage in meaningful
appellate review.” King, 454 F.3d at 196–97; see also Jackson,
supra at 17–19.

       In this case, the District Court complied with steps one
and three laid out in Gunter by demonstrating that it considered
the Guidelines range, weighed the relevant § 3553(a) factors,
and exercised discretion in imposing a sentence. 6 Pursuant to
step one of the Gunter analysis, the Judge determined the
applicable Sentencing Guidelines range for Charles’s offense.
The Judge found that Charles was a career offender because he
had committed a number of offenses before being
incarcerated—including possession of marijuana, criminal
conspiracy, delivery and possession with intent to deliver
cocaine, robbery, possession of crack cocaine, conspiracy to
interfere with interstate commerce by robbery, and interstate
transportation of stolen property; as well as a number of
offenses since being incarcerated—including possession of a


       6
        Here, there were no motions for or against sentencing
departures. The District Court therefore had no occasion to
apply step two of the sentencing analysis. See Gunter, 462 F.3d
at 247 (requiring courts to “formally rul[e] on the motions of
both parties” regarding departures) (quoting King, 454 F.3d at
196); see also Jackson, supra at 9 & n.2 (clarifying the step two
requirements).

                               9
weapon, fighting, refusing to obey an order, being insolent to
staff, interfering with taking count of inmates, refusing to follow
directions, being in an unauthorized area, and assault. As a
career offender under the Guidelines who had admitted
culpability for his offense, Charles fit (as already noted) in a
Guidelines imprisonment range of 36 to 47 months, a supervised
release term of two to three years, and a fine of $4,000 to
$40,000. See U.S.S.G. §§ 2P1.2(a)(2), 3E1.1(a), 4B1.1.

       The Judge also held a resentencing hearing during which,
in accord with step three of Gunter, he discussed the sentencing
memoranda that he had requested each party to submit for his
consideration. At sentencing, the Judge explained that

       [w]e have carefully considered all of the factors set forth
       in 18 U.S.C. § 3553(a), including Defendant’s age,
       family, physical and emotional condition, educational
       and employment background, his prior criminal record,
       and the advisory guideline imprisonment range of 37 to
       46 months.

Charles is correct in asserting that a district judge who merely
states that he has “carefully considered” all § 3553(a) factors has
not met his or her burden for demonstrating reasonableness in
sentencing. See Cooper, 437 F.3d at 329 n.6 (“[W]e disagree
with the decision of the Court of Appeals for the Eleventh
Circuit[, which] held a district court’s statement that it
considered both the defendant’s arguments and the § 3553(a)

                                10
factors at sentencing is by itself sufficient for Booker
purposes.”) (citations omitted); see also Jackson, supra at 19.

        But the Judge in this case did more than that. In addition
to calculating the Guidelines range as required by step one of the
post-Booker sentencing process (and inferentially by subsection
(4) of § 3553(a)), the Judge reviewed Charles’s background and
his personal circumstances, as required by § 3553(a)(1), when
he noted that “[n]othing in Mr. Charles’s personal history
presents itself as a mitigating factor in this case.” The Judge
also noted, as outlined by § 3553(a)(2), that the seriousness of
Charles’s offense, his “propensity for violence,” and “sustained
criminal activities, both before and after being incarcerated,”
showed a “lack of respect for the law” that warranted a “severe
sentence” because his offense “threatened the security of the
entire institution, including staff and inmates.”

       We have previously held that where a career offender
continues to violate the law even after conviction, the
consequences may be severe. See King, 454 F.3d at 195 (“A
lengthy prison sentence was clearly warranted in order to
prevent and deter King from reoffending, as well as to provide
adequate punishment for his conduct.”). In King, we reviewed
the reasonableness of a sentence for a career offender who had
received almost twice the maximum Guidelines range. We
nonetheless found the sentence to be reasonable because the
defendant’s record of continuing offenses was sufficiently
extensive to support an upward departure from the advisory

                               11
Guidelines range. King, 454 F.3d at 195.

       In this case, we are concerned with whether the record
supports a maximum Guidelines range sentence of 46 months.
The similarities between Charles and King suggest that it does.
Like King, Charles is a career offender whose actions warrant
a sentence sufficient to prevent and deter him from committing
the same crime in the future. The Court reasoned as much.
Furthermore, it acknowledged that the Guidelines are now
“advisory.” In addition, after considering Charles’s personal
circumstances, the Court explicitly chose not to impose a fine.
Taken together, the Court’s reasons satisfy us that it considered
the relevant § 3553(a) factors and exercised its discretion to
apply them reasonably.

        As for Charles’s second assertion that the District Court
violated the sufficient-but-not-greater-than-necessary
“Parsimony Provision” of § 3553(a), his argument fails in light
of our recent decisions. To meet the requirements of the
“Parsimony Provision,” he contends, the District Court should
have noted why a low-end Guidelines-range sentence (37
months) was insufficient to meet § 3553(a)(2)’s penological
goals. By demanding that the Court assume the burden of
proving that his sentence is not unreasonable, Charles attempts
to flip the reasonableness requirement on its head. We have
held that the defendant bears the burden of proving that the
sentence was unreasonable. Cooper, 437 F.3d at 332 & n.11
(quoting United States v. Cunningham, 429 F.3d 673, 679 (7th

                               12
Cir. 2005) (“[R]easonableness is a range, not a point. . . . If the
judge could, without abusing his discretion, have ruled in the
defendant’s favor, the defendant is entitled to insist that the
judge exercise discretion, though he cannot complain if the
exercise goes against him.”)).

       Finally, Charles’s third argument—that his sentence
creates “unwarranted sentence disparities”—is unpersuasive as
well. The “need to avoid unwarranted sentence disparities
among defendants with similar records who have been found
guilty of similar conduct,” 18 U.S.C. § 3553(a)(6), is just one
factor (if relevant) that should be balanced against the others
(again, if relevant). Charles concludes that his sentence will
create unwarranted disparities based on three District Court
cases from the Middle District of Pennsylvania where, pre-
Booker, inmates received mid-range or below-range Guidelines
sentences for possession of knife-like objects. App. Br. at 13.7



       7
         Clearly not comparable to Charles is one of the three
cases, where a one-time offender was sentenced to 12 months
and one day. See United States v. Hernandez-Hernandez, No.
4:CR-04-003 (M.D. Pa. filed May 11, 2004). In the other two
cases, career offenders received sentences of 41 months and 37
months, respectively. See United States v. Khari Hill, No.
4:CR-01-156 (M.D. Pa. filed Nov. 23, 2004); United States v .
Israel Flores-Martinez, No. 4:CR-03-58 (M.D. Pa. filed July 1,
2003). The disparities here are minor, consisting of only five to
nine months. We are in no position to determine—as a matter

                                13
As the Government correctly notes, Charles has not shown that
any of the defendants in the District Court cases to which he
cites are similarly situated to him for purposes of comparing
career offenders with a history of institutional misconduct, see
Gov’t Br. at 21, and therefore relevant for a § 3553(a)(6)
comparison. Even if he had, a mere similarity would not be
enough to overcome the high level of deference we accord
sentencing judges. See, e.g., Cooper, 437 F.3d at 330.
Moreover, we recently noted in Gunter that we will tolerate
statutory sentencing disparities so long as a judge demonstrates
that he or she viewed the Guidelines as advisory and reasonably
exercised his or her discretion after applying the three-step
sentencing process. See Gunter, 462 F.3d at 248–49. While any
alleged disparities in this case are non-statutory, they resulted
from the District Judge’s reasonable exercise of discretion after
considering the requisite three steps for calculating sentences as
applied to Charles’s particular circumstances.

                            *   *    *

      As the District Court adequately considered the relevant
§ 3553(a) factors in sentencing Charles, stated explicitly that the


of fact—whether Charles’s circumstances exactly paralleled
those of the defendants in these cases; we leave that
determination to the sentencing judge. What we do know
nonetheless is that these sentences on their surface do not appear
to fall outside a range of reasonableness.

                                14
Guidelines were advisory, and demonstrated the exercise of
discretion, it has reasonably applied the required sentencing
analysis under our post-Booker standards outlined in King,
Cooper, and Gunter. We therefore affirm.




                             15
