                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-10-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4340




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Recommended Citation
"USA v. Suarez" (2003). 2003 Decisions. Paper 466.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/466


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                                                            NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                         Nos. 02-4340/4341/4412/4413/4414

                        UNITED STATES OF AMERICA
                                     v.
                        BERNARDO BERMUDEZ SUAREZ,
                                         Appellant No. 02-4340
                                 _________

                        UNITED STATES OF AMERICA
                                     v.
                        JORGE SILVO BUSOT-ALFONSO,
                                        Appellant No. 02-4341


                        UNITED STATES OF AMERICA
                                     v.
                        TERESA CUNI PEREZ,
                                         Appellant No. 02-4412
                                 __________

                        UNITED STATES OF AMERICA
                                     v.
                        YOANDRA VELAZQUEZ,
                                         Appellant No. 02-4413
                                 __________

                        UNITED STATES OF AMERICA
                                    v.
                        RODOBALDO RODRIGUEZ,
                                        Appellant No. 02-4414

         On Appeal from the District Court of the Virgin Islands (St. Croix)
                         District Judge: Thomas K. Moore
D.C. Criminal Nos. 02-cr-00070, 02-cr-00063, 02-cr-00064, 02-cr-00065, 02-cr-00069

                               Argued: May 1, 2003
                  Before: Roth, McKee & Cowen, Circuit Judges
                           (Filed: June 10, 2003)
Douglas J. Beevers, Esq. (Argued)
Office of Federal Public Defender
P.O. Box 1327, 51B Kongens Gade
Charlotte Amalie, St. Thomas USVI, 00804
       Attorney for Appellant

Nelso L. Jones, Esq.(Argued)
Office of Unites States Attorney
United States Courthouse
5500 Veterans Building, Suite 260
Charlotte Amalie, St. Thomas USVI, 00802-6924
       Attorney for Appellee

                               OPINION OF THE COURT

PER CURIAM

       Defendants appeal the sentence that was imposed following the plea of guilty that

each entered after being charged with violating 18 U.S.C. § 1546(a). For the reasons that

follow, we will affirm.

       Inasmuch as we write only for the parties who are familiar with the background of

this appeal, we need not discuss the factual or procedural background except insofar as

maybe helpful to our brief discussion. Defendants raise only a single issue on appeal.

They contend that the district court imposed sentences on each of them pursuant to a

“practice” that “amounted to a fixed personal sentencing policy rather than the case-by-

case consideration required by U.S. v. King, 53 F.3d 589, 591 (3d Cir. 1995).”

Appellant’s Br. at 7. Each of the defendants was sentenced to a period of three months

incarceration with credit for time served. Prior to sentencing, the district court asked

defense counsel if there was any objection to sentencing all of the defendants charged in

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this case at the same time, and counsel stated that he had no objection. Inasmuch as

defendants did not object before the district court, we review only for plain error. U.S. v.

Olano, 507 U.S. 725, 734-5 (1993).

       Appellants seek to establish that they were sentenced pursuant to some “practice”

in violation of U.S. v. King. Although remarks of the district court during the sentencing

procedure lend some credence to this argument when taken out of context, it is clear to us

that the sentences that were imposed were not imposed pursuant to the kind of practice

that we criticized in King. There, the district court had a practice of determining a certain

fixed number of levels to depart downward under U.S.S.G. § 5k1.1. We noted that such a

standardized practice deprived defendants of the individualized examination that each

was entitled to at sentencing. Here, the fact that each of the defendants received the same

sentence results not from a “common practice”, but from the fact that each of the

defendants was convicted of identical crimes under identical circumstances, each of the

sentences imposed was within the Sentencing Guidelines range for the offense of

conviction, and the district court’s individualized scrutiny of each defendant’s

background and circumstances did not justify imposing a sentence of other than three

months on any of the defendants.

       The district court explained:

              While, I listen very carefully. I read the presentence reports.
              And Mr. Beevers is aware, at least, that is my practice, for
              persons such as defendants here have the ability fortuitously
              to be able to, even though the charge with immigration

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               offenses, to be able to be released and not spend the time in
               jail, that I find it difficult to treat them differently from
               persons that has spent their last dollar getting their document
               or paying the smuggler, and therefore have no contact, in the
               Virgin Islands or in the Continental United States, to be able
               to be released on bail pending their appeal.

App. at 64. The court’s explanation of the rationale for imposing similar sentences

differentiates these sentences from those we condemned in King. Moreover, the court’s

explanation also disposes with the defense argument that appellants were penalized for

exercising their right to bail.

       The district court must weigh several factors in order to avoid unwarranted

sentencing disparities among defendants with similar records who are convicted of

similar conduct. 18 U.S.C. § 3553(a)(6). Here, inasmuch as each was convicted of

identical immigration violations accomplished the same way, there was no basis of

distinguishing among the defendants individual criminal conduct. In imposing sentence,

the court merely explained that it did not believe it was fair to sentence defendants who

had the resources to obtain bail in a manner which gave them an unfair and unwarranted

advantage over defendants with inadequate resources to make bail. Rather than

penalizing defendants for their right to bail as defendants contend, the court’s explanation

merely reflects an appropriate concern over imposing sentences which treat all of the

defendants fairly without penalizing those defendants who lack the resources to be

released on bail pending sentencing. We find no error in these sentences, let alone any

plain error. Accordingly, we will affirm.

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