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


6-13-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4363




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 05-4363
                                     ____________

                           UNITED STATES OF AMERICA

                                             v.

                                 ARTHUR MILLARD,
                                          Appellant
                                   ____________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                 (D.C. No. 03:CR-04-98)
                       District Judge: Honorable Edwin M. Kosik
                                      ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    June 12, 2006

            Before: FISHER, GREENBERG, and LOURIE,* Circuit Judges.

                                  (Filed: June 13, 2006)
                                      ____________

                               OPINION OF THE COURT
                                    ____________




      *
         Honorable Alan D. Lourie, United States Circuit Judge for the Federal Circuit,
sitting by designation.
LOURIE, Circuit Judge.

       Arthur Millard (“Millard”) appeals from the District Court’s decision sentencing

him to 130 months of imprisonment for possession with intent to distribute heroin in

violation of 21 U.S.C. § 841(a)(1). Because the record reflects that the District Court

properly considered the sentencing factors provided in 21 U.S.C. § 3553(a), as well as the

Sentencing Guidelines, and the sentence was reasonable, we will affirm.

       On March 7, 2004, Millard was arrested by DEA agents for possession with intent

to distribute heroin. The arrest occurred after DEA agents and Wilkes-Barre police,

acting on information from a confidential informant, stopped a vehicle driven by Millard

in Luzerne County, Pennsylvania. A search of the vehicle resulted in the seizure of

approximately 400 small bags of heroin. On April 21, 2005, pursuant to a prior plea

agreement, Millard pled “guilty” to one count of possession with intent to distribute

heroin in violation of 21 U.S.C. § 841(a)(1). Prior to his sentencing, the United States

Probation Office conducted an investigation that concluded that Millard was a “career

offender.” On September 13, 2005, the District Court conducted a hearing and sentenced

Millard to 130 months of imprisonment. Millard timely appealed that sentence, and we

have jurisdiction pursuant to 18 U.S.C. § 3742(a)(1).

       On appeal, Millard argues that the District Court committed plain error by

imposing a sentence without adequately articulating how it considered the factors set

forth in § 3553(a). According to Millard, although the Court acknowledged the existence



                                             2
of the factors, it did not otherwise explain how it weighed those factors before reaching

Millard’s sentence. Millard contends that the Court’s failure to articulate its

consideration of the § 3553(a) factors renders his sentence unreviewable, and thus

unreasonable.

       We agree with the government that the District Court did properly consider the

§ 3553(a) factors, and that Millard’s sentence was not unreasonable. We review the

adequacy of the District Court’s articulation of the factors set forth in § 3553(a) for plain

error. United States v. Olano, 507 U.S. 725, 432-34 (1993). In United States v.

Cooper, 437 F.3d 324 (3d Cir. 2006), we addressed the extent to which the sentencing

court must articulate its consideration of the § 3553(a) factors. Section 3553(a) provides

as follows:

       The court, in determining the particular sentence to be imposed, shall
       consider--
       (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 . . .




                                              3
              (A) the applicable category of offense committed by the
              applicable category of defendant as set forth in the guidelines.
              ...

We have recognized that in sentencing a defendant, “[t]he record must demonstrate that

the trial court gave meaningful consideration to the § 3553(a) factors.” Id. at 329. There

is no need, however, for the trial court to “discuss and make findings as to each of the

§ 3553(a) factors if the record makes clear that the court took the factors into account in

sentencing.” Id. With this guidance in mind, our review of the record allows us to

conclude that, contrary to Millard’s contention, the District Court did properly consider

each of the § 3553(a) factors.

       As an initial matter, we note that in imposing a sentence of 130 months, the

District Court departed downwardly two levels from the minimum sentence that the

United States Sentencing Guidelines (“Guidelines”) would have otherwise provided for

the crime that Millard pleaded guilty to and in consideration of his criminal history.

Moreover, Millard, on appeal, does not assert that the District Court failed to consider the

correct range of sentences under the Guidelines. See id. at 332 (stating that “[a] sentence

that falls within the guidelines is more likely to be reasonable than one outside the

guidelines range”).

       As mentioned above, our law does not require that the District Court expressly

identify and address each of the factors listed in § 3553(a). It is enough that upon our

review of the record, we can discern that the Court gave meaningful consideration to the



                                              4
§ 3553(a) factors. During the sentencing hearing, the Court stated that Millard’s sentence

was imposed “satisfying the advisory guidelines and the purposes set forth in 18 U.S.C.

§ 3553(a).” The Court recognized that under the Guidelines, Millard was subject to

151-188 months of imprisonment. The Court also expressly mentioned Millard’s long

history of serious criminal activity, including his “career offender” status, and that

Millard committed his most recent crime while on parole. Nonetheless, in downwardly

departing two offense levels from the Guidelines, the Court evidently looked kindly upon

recommendations from Millard’s family, his certificates of accomplishment and

achievement while in prison, his employment history, and his rehabilitative needs, factors

that were all raised and discussed to some extent during the course of Millard’s

sentencing hearing. In view of this record before us, we cannot conclude that the Court

committed plain error by failing to articulate exactly how it weighed the § 3553(a)

factors.

       Accordingly, we will affirm the District Court’s decision sentencing Millard to 130

months of imprisonment.




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