                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-30-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2077




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                              Nos. 07-2077 and 07-2078
                                   ____________

                          UNITED STATES OF AMERICA

                                            v.

                                 JOHN C. TANIS, III,

                                          Appellant
                                    ____________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                       (D.C. Nos. 05-cr-00117 and 07-cr-00090)
                     District Judge: Honorable James M. Munley
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 15, 2008

              Before: AMBRO, FISHER and MICHEL,* Circuit Judges.

                                 (Filed: July 30, 2008)
                                     ____________

                             OPINION OF THE COURT
                                  ____________




      *
        The Honorable Paul R. Michel, Chief Judge of the United States Court of Appeals
for the Federal Circuit, sitting by designation.
FISHER, Circuit Judge.

       John Tanis pled guilty to illegal possession of firearms, 18 U.S.C. § 922(g), and

misprision of a felony, 18 U.S.C. § 4. The District Court sentenced him to imprisonment

totaling 72 months. Tanis appeals his sentence. He argues that the sentence is

unreasonable because if the Court had properly considered the factors outlined in 18

U.S.C. § 3553, it would have imposed a shorter sentence. For the reasons set forth below,

we will affirm.

                                              I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       Tanis has a criminal history dating back to 1993. He was convicted in New Jersey

and Pennsylvania state courts of multiple counts of cruelty to animals and unlawful

possession of weapons. He fled from justice at least once and was subsequently arrested

in a different state on a fugitive warrant.

       In 2005, a confidential informant told FBI agents that Tanis was in possession of

machine guns. The subsequent investigation resulted in searches of his home, his

vehicles, and various gun shops. Tanis cooperated in the investigation, and the end result

was the seizure of over 170 firearms, plus ammunition and gun parts.




                                              2
       In 2006, Tanis pled guilty to possession of firearms by an individual who has been

convicted of a crime punishable by imprisonment for a term exceeding one year. 18

U.S.C. § 922(g)(1). After his guilty plea but before his sentencing, Tanis attempted to

deposit into his mother’s bank account ten altered or counterfeit checks. He was indicted

for bank fraud, possessing and uttering forged securities, and passing or attempting to

pass false and fictitious financial instruments. Tanis and the government entered into a

plea agreement whereby Tanis pled guilty to misprision of a felony and the parties agreed

that the appropriate sentence was 12 months and a day, to be served consecutively to the

sentence for the § 922(g) conviction.

       In two back-to-back sentencing hearings on March 30, 2007, the District Court

handed down sentences for Tanis’s crimes. For the § 922(g) offense, the Court imposed a

sentence of sixty months’ imprisonment followed by three years’ supervised release. For

the misprision of a felony, the Court accepted the plea agreement and imposed a sentence

of twelve months and a day.




                                             3
       On April 11, 2007, Tanis filed a notice of appeal.1 The consolidated appeal is now

before us.

                                            II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We

“consider the substantive reasonableness of [a] sentence . . . under an abuse-of-discretion

standard.” United States v. Smalley, 517 F.3d 208, 214 (3d Cir. 2008) (citing Gall v.

United States, 128 S. Ct. 586, 597 (2007)). “We review for plain error . . . when a

defendant did not object to a purported error before the sentencing court.” United States

v. Bernard, 373 F.3d 339, 341 (3d Cir. 2004).

                                            III.

       Tanis’s sole argument is that his sentences, which totaled 72 months’

imprisonment, were unreasonable. He claims that the District Court did not adequately

consider the 18 U.S.C. § 3553(a) factors when determining his sentences. Tanis did not




       1
        It appears that Tanis’s notice of appeal was not timely. Fed. R. App. P. 4(b)
provides that a notice of appeal must be filed within ten days. Since the sentencing
hearings were on March 30, 2007, the ten-day deadline was April 9, 2007. Tanis’s notice
of appeal was filed on April 11, 2007. As the Second Circuit has explained: “When the
government properly objects to the untimeliness of a defendant’s criminal appeal, Rule
4(b) is mandatory and inflexible. But Rule 4(b), even when properly invoked, does not
deprive us of subject-matter jurisdiction . . . . [W]here, as here, the government forfeits
an objection to the untimeliness of a defendant’s appeal by failing to raise it, we act
within our jurisdiction when we decide to consider the appeal as though it were timely
filed.” United States v. Frias, 521 F.3d 229, 234 (2d Cir. 2008) (citations omitted).

                                             4
object at the sentencing hearing that the Court had failed to consider the § 3553(a)

factors, so we review the sentences for plain error.

       Tanis specifically claims that a sentence of less than 72 months would have been

sufficient for deterrence purposes under § 3553(a)(2)(B); he says that “a 6 year sentence

does not alter behavior significantly more than a lesser sentence, say 4 years.” He argues

that because of his non-violent history, his cooperation with the government, and his

remorse, a lesser sentence would be sufficient to protect society under § 3553(a)(2)(C).2

Finally, he asserts that the Sentencing Guidelines range improperly “drove the sentence.”

He says that the District Court gave too much weight to the Guidelines, resulting in a

sentencing process that did not conform to the “spirit of Booker.”

       We will consider the sentences separately.

                                             A.

       Tanis’s sentence of 60 months’ imprisonment and three years’ supervised release

for the § 922(g) violation did not amount to plain error. The government requested a two-

level downward departure because Tanis’s cooperation led to the recovery of firearms.

The Court granted the departure, resulting in a Level 22 offense with a Guidelines range




       2
        Tanis’s expression of remorse at his § 922(g) sentencing hearing was, to put it
charitably, lukewarm. He told the District Court that the guns in question (170 automatic
weapons and silencers) were family heirlooms that he needed to care for. According to
his “understanding of the current law, . . . . [t]here was no procedure legally for me to
register them.” Tanis told the Court that “given the opportunity, I would comply with any
laws that were there, if possible.”

                                             5
of 77 to 96 months. The 60-month sentence was seventeen months below the bottom of

the Guidelines range.

       The transcript of the sentencing hearing shows that the Court considered the

factors outlined in § 3553(a)(2), including deterrence, punishment, promotion of respect

for the law, protection of the public, and correctional treatment. The Court also listed and

considered the factors outlined in § 3553(a)(1), including Tanis’s age, his poor health,

and his cooperation with the government. Addressing the nature of Tanis’s offense, one

of the § 3553(a)(1) factors, the Court stated that Tanis’s weapons offenses were “very,

very serious in the times in which we live” because “guns and silencers and automatic

weapons are the fear of all our public.”

       We conclude that the Court properly considered the § 3553(a) factors. In addition,

the Court did not violate the “spirit” of Booker. As it was required to, the Court began by

calculating the Guidelines sentence. United States v. Gunter, 462 F.3d 237, 247 (3d Cir.

2006). It then fashioned a sentence that properly accounted for the nature of the offense

and the defendant. Id.

       “A sentence that falls within the guidelines range is more likely to be reasonable

than one outside the guidelines range.” United States v. Lloyd, 469 F.3d 319, 327 (3d Cir.

2006). In this case, the sentence was below the Guidelines range. Since Tanis’s

arguments do not demonstrate that a 60-month sentence was unreasonable, it logically

follows that there was no plain error.



                                             6
                                            B.

      The District Court sentenced Tanis to imprisonment of twelve months and a day

for misprision of a felony, to be served consecutively to the § 922(g) sentence. The

sentence was imposed in accordance with the plea agreement, which states that

“[p]ursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, the

government and the defendant stipulate and agree” that Tanis will be sentenced to 12

months plus one day. The parties also agreed that “[t]he sentence imposed for this

offense shall run consecutive[ly] to the sentence imposed on the defendant’s felon in

possession of a firearm offense.”

      An agreement entered under Rule 11(c)(1)(C) “binds the court once the court

accepts the plea agreement.” Fed. R. Crim. P. 11(c)(1)(C); Bernard, 373 F.3d at 343. It

was reasonable for the District Court to sentence Tanis in accordance with the binding

plea agreement. In addition, the sentence was well below the Guidelines range of twenty-

one to twenty-seven months. Even if Tanis had not agreed to the sentence, we would

consider it reasonable. See Lloyd, 469 F.3d at 327.

                                           IV.

      For the foregoing reasons, we will affirm the District Court’s judgment of

sentence.




                                            7
