                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-26-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2325




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Recommended Citation
"USA v. Outram" (2005). 2005 Decisions. Paper 1128.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1128


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                                              NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    No. 04-2325


                         UNITED STATES OF AMERICA

                                         v.

                        RODERICK RANDALL OUTRAM
                            a/k/a Sean M. Brewster

                                              Appellant



                  On Appeal from the United States District Court
                      for the Middle District of Pennsylvania
                               (D.C. No. 03-cr-00115)
                    District Judge: The Honorable Yvette Kane



                    Submitted Under Third Circuit LAR 34.1(a)
                               Date: May 13, 2005

            Before: SLOVITER, FISHER and ALDISERT, Circuit Judges

                               (Filed: May 26, 2005)

                                      ______

                            OPINION OF THE COURT
                                   ______

ALDISERT, Circuit Judge.

      Appellant Roderick Randall Outram appeals his conviction and sentence pursuant
to 8 U.S.C. § 1326 for unlawful reentry of a previously deported alien after a conviction

in a New York state court for possession of a controlled substance. In 1991, Outram was

placed in deportation proceedings following the New York conviction of what was

deemed an aggravated felony. He was deported and illegally re-entered the United States

in 1995. In 2002, he was convicted and sentenced in a Pennsylvania state court for a

narcotics possession charge. In 2004, he pled guilty in the District Court to a violation of

8 U.S.C. § 1326 and was sentenced to 57 months imprisonment to run consecutively with

his state sentence.

       We must decide whether the District Court: (1) committed plain error in accepting

Outram’s guilty plea; (2) exceeded the permissible bounds of discretion in imposing a

consecutive sentence; and (3) erred in imposing a 57 month sentence. We have

jurisdiction pursuant to 28 U.S.C. § 1291. We will affirm the conviction and imposition

of the consecutive sentence. Inasmuch as the District Court used the Sentencing

Guidelines to determine the length of Outram’s sentence, we will vacate the sentence and

remand for re-sentencing in accordance with United States v. Booker, 543 U.S.—, 125

S.Ct. 738 (2005).

                                             I.

       Because we write only for the parties, who are familiar with the facts, procedural

history and contentions presented, we will not recite them except as necessary to the

discussion.

                                             II.
         Outram contends that the District Court erred in accepting his guilty plea.

Because Outram made no attempt to withdraw his guilty plea in the District Court, we

review for plain error. United States v. Knobloch, 131 F.3d 366, 370 (3d Cir. 1997). To

establish plain error, there must be: (1) an error; (2) that is plain; (3) that affects

substantial rights; and (4) that affects the fairness, integrity or public reputation of the

proceedings. Id. (quoting Johnson v. United States, 520 U.S. 461, 462 (1997)).

         Outram fails to meet the high standard for establishing plain error. He contends

that he did not fully understand the nature of the charges and the severity of the potential

outcome and that his representation was inadequate. Our review of the record reveals that

this was not the case. At the reception of the plea, the District Court read the indictment

to Outram and he responded that he understood the substance of the indictment. The

Court advised Outram of the rights he was giving up by pleading guilty, including the

right to a jury trial. Upon ascertaining that Outram understood the nature of the charge

and all the rights he was waiving by not going to trial, the Court asked the prosecutor to

state the essential terms of the plea agreement. Outram was asked also if he signed the

agreement willingly and he replied in the affirmative. Accordingly, there was no plain

error.

                                               III.

         Outram contends also that the imposition of a consecutive sentence violated his

Eighth Amendment guarantee against cruel and unusual punishment and his right to due

process of the law pursuant to the Fourteenth Amendment. We review the determination
to impose a consecutive sentence for an abuse of discretion. United States v. Saintville,

218 F.3d 246, 248 (3d Cir. 2000).

       We are persuaded that the District Court did not exceed the permissible bounds of

discretion in imposing a consecutive sentence. This is not a piling on case. Outram was

not serving a federal sentence. He was incarcerated for violating the laws of a separate

sovereign, the Commonwealth of Pennsylvania. The present sentence is the result of a

guilty plea to an unlawful entry to the United States of a previously deported alien after

conviction for possession of a controlled substance.

                                             IV.

       Outram challenges the length of the sentence. Having concluded that the

sentencing issues raised here are best determined by the District Court in the first

instance, we will vacate the sentence and remand for re-sentencing in accordance with

United States v. Booker, 543 U.S.—, 125 S.Ct. 738 (2005).

                                           *****

       We have considered all of the arguments advanced by the parties and conclude

that no further discussion is necessary.

       The judgment of the District Court relating to Outram’s conviction will be

affirmed. We conclude that the imposition of a consecutive sentence was not an abuse of

discretion. Inasmuch as the length of the sentence involved an interpretation of the

Sentencing Guidelines, we will vacate the sentence and remand for re-sentencing in

accordance with Booker.
