                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 11-1309
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                                RODERICK F. BAILEY,
                                             Appellant
                                   _____________

                      Appeal from the United States District Court
                         for the Western District of Pennsylvania
                         (D.C. Criminal No. 1-06-cr-00157-004)
                    District Judge: Honorable David Stewart Cercone
                                     _____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 14, 2011

                   Before: RENDELL and AMBRO, Circuit Judges
                            and JONES, II, District Judge

                           (Opinion Filed: January 24, 2012 )
                                   _____________

                              OPINION OF THE COURT
                                  _____________




 The Honorable C. Darnell Jones, II, District Judge for the United States District Court
for the Eastern District of Pennsylvania, sitting by designation.
JONES, II, District Judge.

        On January 20, 2011, Appellant Roderick F. Bailey (“Bailey”) was sentenced to

serve two concurrent 178-month terms of imprisonment, followed by five years of

supervised release, for his participation in an illegal drug ring.1 Bailey now appeals his

judgment of sentence. For the reasons set forth hereinbelow, that judgment will be

vacated and the matter will be remanded for resentencing.

                                              I.

        We write primarily for the benefit of the parties and thus recount only the essential

facts and procedural history.

        Bailey was involved in criminal drug activity, which occurred between March

2004 and March 2006. Wiretap evidence collected on January 13, 2006 revealed

communications between Bailey and another target of the investigation, Shawn Hall.

(App. 22) Bailey had arranged to purchase cocaine from Hall and surveillance officers

observed Bailey arriving at Hall‟s residence and leaving a short time later. (App. 22)

After Bailey drove off, officers stopped him and ultimately seized 492.8 grams of cocaine

from the vehicle. (App. 22-23) Bailey later admitted that on January 11, 2006, January

13, 2006, and February 7, 2006, he possessed cocaine with the intent to distribute it and

that he was distributing between five (5) to fifteen (15) kilograms of cocaine in

conspiracy with Hall and others. (App. 23-24).2


1
  Bailey‟s original judgment of sentence was amended on January 31, 2011 to correct
defense counsel‟s name.
2
    These facts were directly admitted by Bailey during his Change of Plea Hearing.

                                              2
       As a result of these events, Bailey was charged by criminal indictment with: one

count of Conspiracy to Distribute and Possess With the Intent to Distribute Five

Kilograms or More of Cocaine, in violation of 21 U.S.C. § 846; and three counts of

Possession With Intent to Distribute Cocaine, in violation of 21 U.S.C. § 841(a)(1) and

§841(b)(1)(C). Bailey pleaded guilty to same on November 2, 2006, and prior to

sentencing filed a Sentencing Memorandum, wherein he argued that Recklessly

Endangering Another Person was not a crime of violence for purposes of U.S.S.G. §

4B1.1 and that his criminal history was over-represented by reason of the “career

offender” classification that had been assigned to him. (App. 28-30, 40-42)

       On May 2, 2007, Bailey was sentenced to serve two concurrent 180-month terms

of imprisonment, followed by one year of supervised release.3 (App. 67) On January

24, 2008, Bailey filed a pro se Motion to Vacate Sentence pursuant to 28 U.S.C. § 2255,

in which he argued that prior counsel was ineffective for failing to file a direct appeal

from his judgment of sentence, and that prior counsel induced him to plead guilty by

promising that he would not receive a term of imprisonment of more than 120 months.

Counsel was appointed for purposes of that Motion and, upon stipulation by the

government, Bailey‟s sentence was vacated and his appellate rights were reinstated.

(App. 81) A second sentencing hearing was held on January 20, 2011, after which

Bailey was resentenced to two concurrent 178-month terms of imprisonment, followed by

five years of supervised release. (App. 103)

3
  Bailey‟s initial sentencing hearing commenced on April 23, 2007. However, as the
court was in the process of imposing sentence, Bailey became ill and court was abruptly
adjourned. On May 2, 2007, the parties reconvened and the court imposed sentence.

                                               3
       This appeal followed.

                                            II

       Bailey raises one issue for this Court‟s consideration: whether the District Court

committed error when it re-sentenced him without considering post-sentence

rehabilitation evidence. The Supreme Court recently determined that “District courts

post-Booker may consider evidence of a defendant‟s postsentencing rehabilitation at

resentencing and such evidence may, in appropriate cases, support a downward variance

from the advisory Guidelines range.” Pepper v. United States, 131 S. Ct. 1229, 1249

(U.S. 2011). In this case, we are unable to determine the extent to which, if any, the

sentencing court considered such evidence. Therefore, “out of an abundance of caution

and due deference to the Supreme Court‟s instructions in Pepper[,]” we will remand for

re-sentencing. United States v. Diaz, 639 F.3d 616, 623 (3d Cir. 2011).

       In reviewing a sentence, we assess it under an abuse-of-discretion standard. Gall

v. United States, 552 U.S. 38, 51(2007). Further, the sentencing court‟s factual findings

are reviewed for clear error. United States v. Lopez, 650 F.3d 952, 959-960 (3d Cir.

2011) (citing United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007)). However, in

cases such as this, where no objection was made regarding the sentencing issue currently

contested, we “review only for plain error.” United States v. Miller, 594 F.3d 172, 183

n.6 (3d Cir. 2010) (citing United States v. Voelker, 489 F.3d 139, 143 n.1 (3d Cir. 2007)).

       At the time of Bailey‟s second sentencing, the court was presented with evidence

of his employment, as well as activities he engaged in while incarcerated (including




                                             4
additional classes he had taken). (App. 90-91) To wit, the defense offered the following

testimony:

               Counsel:     Could you let the court know what you‟re doing to make
                            effective use of your time while you‟ve been there?

               Defendant:   I‟ve taken - - pretty much, this is my second institution of
                            mine. I‟ve pretty much done every class there is possible at
                            FCI Elkton as well as FCI McKean. Even some graduate
                            classes in regards to different programs that are available to
                            me. I‟m actually the clerk up at FCI Elkton on my unit where
                            I do all the payroll and everything.

               Counsel:     For the inmate workers.

               Defendant:   For the inmate workers. I‟m right next to the counselor and
                            you know, I do all those - - doing those jobs to be trusted in
                            that manner. So I haven‟t just wasted my time doing
                            anything, and I try to be a positive influence to other inmates
                            that are trying to do the right thing, you know, and to reunify
                            their self back into the community - - integrate their self that
                            want to get back into the community.

(App. 89-90)

      Bailey informed the sentencing court that he had completed a 40-hour drug

program in the federal system, had completed some non-mandatory programs, and

intended to complete the 500-hour drug program when it became available to him.4

(App. 90-91) However, the sentencing court ultimately concluded that “not very much at

all has changed between the original sentencing and now” and, as such, the court




4
  We of course recognize that a defendant‟s self-expressed “intent” to do something
cannot constitute rehabilitation evidence.

                                             5
“incorporate[d] all of the reasons for its original sentence, including the finding that the

defendant‟s - - that the sentencing guidelines, to some degree, overstated the defendant‟s

criminal history.” (App. 96-97, 102)

        The government argues that Bailey has not preserved his rehabilitation evidence

claim and that the same has therefore been waived for failure to ask the court to take

rehabilitation into account when imposing sentence. (Appellee Br. 18)

        Preliminarily, this Court notes that Bailey‟s resentencing occurred on January 20,

2011, and a final judgment of sentence was entered on January 31, 20115 - - while

Pepper was still pending before the United States Supreme Court. Bailey‟s re-sentencing

counsel filed an appeal on February 1, 2011, and the Pepper decision was rendered on

March 2, 2011. Although Bailey‟s counsel did not specifically articulate to the

sentencing court that she wished for rehabilitation evidence to be considered, she did

present Mr. Bailey‟s testimony regarding that issue, in which he provided specific

instances of the rehabilitation he had undergone while in federal custody. Moreover, the

government acknowledged the fact that Bailey‟s counsel wished to advise the court of

this information, by stating “[Bailey] wanted to come back and get a second bite at the

apple to advise the court of the good things that he‟s done and the changes that he‟s made

in his life and his family situation.” (App. 95-96) Therefore, the issue of post-sentence

rehabilitation evidence has been preserved.

        Inasmuch as Pepper was not law at the time of Bailey‟s re-sentencing, counsel

cannot be faulted for failing to further pursue the rehabilitation issue or object to the

5
    See supra note 1.

                                              6
court‟s apparent failure to consider such evidence. Similarly, the trial court cannot be

faulted for failing to apply a precept that was not in existence at the time of Bailey‟s re-

sentencing. However, the law applied by the trial court is now contrary to that which

exists as we consider this matter on appeal. Accordingly, the District Court‟s failure to

consider rehabilitation evidence at Bailey‟s re-sentencing must be deemed “plain error.”

See Johnson v. United States, 520 U.S. 461, 468 (1997) (“[W]here the law at the time of

trial was settled and clearly contrary to the law at the time of appeal--it is enough that an

error be „plain‟ at the time of appellate consideration.”).

       As this Court recently noted, “[a]ppropriate sentences can only be imposed when

sentencing courts „consider the widest possible breadth of information about a

defendant.‟ It is only then that we can „ensure[] that the punishment will suit not merely

the offense but the individual defendant.‟” United States v. Salinas-Cortez, 660 F.3d 695,

698 (3d Cir. 2011) (quoting Pepper, 131 S. Ct. at 1240). In that same vein,

              [i]t is only by ensuring that the individual circumstances of the defendant
              are not obliterated by the offense that an individual‟s potential to
              successfully rejoin society is maximized and the interest of public safety
              advanced. Thus, “[i]t has been uniform and constant in the federal judicial
              tradition for the sentencing judge to consider every convicted person as an
              individual and every case as a unique study in the human failings that
              sometimes mitigate, sometimes magnify, the crime and the punishment to
              ensue.” Koon v. United States, 518 U.S. 81, 113, 116 S. Ct. 2035, 135 L.
              Ed. 2d 392 (1996). This bedrock principle predates enactment of the
              Guidelines.

              It should therefore not be surprising that a defendant‟s postsentencing
              rehabilitation may illuminate a defendant‟s character and assist the
              sentencing court in assessing who the defendant is as well as who s/he may
              become. Such information may, in some cases, be as significant in
              ascertaining the defendant‟s character and likelihood of recidivism as the
              defendant‟s conduct before s/he was forced to account for his/her antisocial


                                              7
              behavior. See Pepper, 131 S. Ct. at 1242 (citing with approval United
              States v. McMannus, 496 F.3d 846, 853 (8th Cir. 2007) (Melloy, J.,
              concurring) (“In assessing at least three of the Section 3553(a) factors,
              deterrence, protection of the public and rehabilitation, 18 U.S.C.
              §3553(a)(2)(B)(C) & (D), there would seem to be no better evidence than a
              defendant‟s post-incarceration conduct.”)).

Id.

       As indicated above, the sentencing judge herein determined that “[i]n the final

analysis, not very much at all has changed between the original sentencing and now.”

(App. 102) He went on to discuss the change in law regarding the status of Bailey‟s prior

convictions and, based upon this information, concluded that the sentencing guidelines

“overstated the defendant‟s criminal history.” (App. 102) Absent any indication that

post-sentence rehabilitation evidence was considered by the court when re-sentencing

Bailey, the matter must be remanded for re-sentencing in accordance with the mandates

of Pepper. 131 S.Ct. 1229, 1249 (U.S. 2011).

                                            III

       In view of the foregoing, we will remand for resentencing for the limited purpose

of an on-the-record determination regarding the effect, if any, of Bailey‟s post-sentence

rehabilitation on his sentence.




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