                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-13-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4800




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                                                               NON-PRECEDENTIAL


                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                               Nos. 05-4800 & 06-2986


                          UNITED STATES OF AMERICA


                                          v.


                               MARK ALAN COLIAN,

                                               Appellant


                   On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                            (District Court No. 05-cr-00110-1)
                  District Judge: The Honorable William W. Caldwell


                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  April 12, 2007

                     Before: SMITH and COWEN, Circuit Judges,
                              and YOHN, District Judge*

                                (Filed: April 13, 2007)


                                      OPINION




   *
   The Honorable William H. Yohn, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
PER CURIAM.

       In this case we examine the question of whether the District Court acted

unreasonably when it pronounced a 48-month sentence on remand after three of the seven

original counts against the defendant were dismissed, having previously imposed a 63-

month sentence. We hold that this sentence is not unreasonable.

                                              I.

       In this non-precedential opinion, we write only for the parties, and therefore our

factual recitation is brief. At issue is Mark Colian’s appeal from his re-sentencing. After a

jury trial, Colian was found guilty of seven counts of mailing threatening communications

in violation of 18 U.S.C. § 876(c). The District Court sentenced him to 63 months,

explaining that “[t]his term consists of nine months on each count, to be served

consecutively.” In his initial appeal, Colian alleged that his request for a motion for

acquittal should have been granted as to Counts Two, Three, and Five because the

Government failed to prove that the letters Colian mailed which were the basis of those

charges contained the powdery substance that had been inside the other envelopes. Those

letters contained only the statement “Death to Israel! Death to America! Allah is great,”

which did not constitute a true threat. The Government agreed and filed a motion to

remand for resentencing in this Court, conceding that the motion for acquittal as to

Counts Two, Three, and Five should have been granted. This Court granted the motion.

       On May 30, 2006, the District Court resentenced Colian to 48 months, explaining

that “[t]his term consists of 12 months on each count to be served consecutively.” The

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District Court offered no further explanation of its sentence, except to overrule the

objections of defense counsel to the Government’s request for the upper end of the

Guidelines and to state that “I have to treat this matter seriously.” On June 9, 2006, the

Court issued an order explaining the “background” of the Judgment and Commitment

Order. In this statement, the Court explained that “[a]lthough full consideration was given

to the § 3553 factors in resentencing Colian, the record at sentencing does not reflect that

fact.” The Court then set forth its reasons, in accordance with 18 U.S.C. § 3553(a), for

sentencing Colian to 48 months.

       Colian now argues that his sentence of 48 months should be reduced by 12

months, for a total of nine months per count, as his original sentence accorded nine

months per count. Colian also asserts that his sentence was unreasonable because the

District Court did not consider the § 3553(a) factors.

                                             II.

       The procedure followed in resentencing Colian is problematic. During the

resentencing hearing, the Court failed to mention its consideration of any of the 18 U.S.C.

§ 3553(a) factors. See United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006) (“To

determine if the court acted reasonably in imposing the resulting sentence, we must first

be satisfied the court exercised its discretion by considering the relevant factors.”).

Instead, the Court’s reasoning came 10 days after the sentencing hearing, on the final day

for Colian to file an appeal from the judgment of sentence.

       Subsection (c) of § 3553 provides that “[t]he court, at the time of sentencing, shall

                                              3
state in open court the reasons for its imposition of the particular sentence....” 18 U.S.C. §

3553(c) (emphasis added). At the time of sentencing, the District Court offered only its

observation that the matter needed to be treated seriously. This statement was insufficient

to satisfy the requirements of § 3553. Consequently, the delayed explanation of the

Court’s reasoning was erroneous.

       Even though it was error for the District Court to omit the discussion of the §

3553(a) factors from the sentencing hearing, this error was harmless. See United States v.

Vazquez, 271 F.3d 93, 103 (3d Cir. 2001) (“[S]entencing errors can also be harmless....”).

In United States v. Stevens, 223 F.3d 239, 241-46 (3d Cir. 2000), this Court applied plain

error review to the district court’s failure to verify that the defendant had read and

discussed the presentence report with his attorney, as required by Federal Rule of

Criminal Procedure 32. The Stevens panel noted that although “we have allowed for a

more functional fulfillment of the rule,” the district court “fell short of even this mark.”

Id. at 241-42. Because Stevens did not object to the omission of the verification, the panel

reviewed for plain error, and concluded that although the error was plain, it did not affect

Stevens’ substantial rights, and therefore was not reversible error. Id. at 243; United

States v. Parker, 462 F.3d 273, 278 (3d Cir. 2006) (applying plain error review to a

defendant’s argument that the district court failed to give a sufficient statement of reasons

under § 3553(c)). Similarly, although the District Court’s omission here was plain, it did

not violate his substantial rights because the sentence was reasonable.

       The District Court’s explanation, though tardy, satisfies the requirement that the

                                              4
court consider the § 3553(a) factors on the record in shaping a sentence.1 See Cooper, 437

F.3d at 329 (“The record must demonstrate the trial court gave meaningful consideration

to the § 3553(a) factors.”). The Court evaluated the nature of the crime, the defendant’s

individual characteristics and criminal history, the deterrent effect of the sentence, the

applicable guideline range, the defendant’s behavior while incarcerated and on parole, the

relevant conduct of the discharged counts, prior prison discipline relating to the

circumstances of this case, and the likelihood of recidivism. Based on these factors, the

48-month sentence was not unreasonable. The fact that the Court initially explained that

the 63-month sentence was divisible into nine-month increments for each of the seven

original counts does not render the revised 48-month sentence unreasonable. The Court

explained that it considered the seriousness of the offense to require a longer period of

incarceration than the 36 months requested by defense counsel, and adequately stated its

reasoning under § 3553(a).

       Notwithstanding the reasonableness of the sentence, we strongly discourage the

procedure that was followed here. We reiterate the mandate of § 3553(c) and the

presumption in our case law that all issues pertaining to the pronouncement of sentence


   1
    We note that even though the record at the time Colian took his initial appeal on May
31, 2006 did not contain the District Court’s June 9, 2006 explanation, neither party has
objected to the inclusion of this docket entry in the record on appeal. See FED. R. APP. P.
10(a)(3) (the record on appeal includes docket entries). Colian filed his second appeal on
June 9, 2006, challenging his sentence. However, as Colian does not argue that the June 9
order is not properly part of the record on appeal, and indeed has included it in his own
submissions and framed the issue in terms of the reasonableness of his sentence, we
proceed to reasonableness review.
                                              5
will be addressed at the sentencing hearing while the defendant is present. See Cooper,

437 F.3d at 330 n.8 (“[S]entencing judges normally state and resolve sentencing issues

from the bench while the sentencing proceeding is underway.”); id. at 332 (“There are no

magic words that a district judge must invoke when sentencing, but the record should

demonstrate that the court considered the § 3553(a) factors....” (emphasis added)); see

also United States v. Severino, 454 F.3d 206, 212 (3d Cir. 2006) (evaluating what the

district court said at the sentencing hearing); United States v. Cooper, 394 F.3d 172, 175

(3d Cir. 2005) (noting that “[f]rom the bench the District Court explained its reasons...”);

Stevens, 223 F.3d at 246 (“[D]istrict court errors like this one are regrettable and easily

avoidable, and we exhort district courts to engage in the “simple practice” of addressing

defendants directly....”). As this Court explained in United States v. Grier, 475 F.3d 556

(3d Cir. 2007):

       The rationale by which a district court reaches a final sentence is important.
       It offers the defendant, the government, the victim, and the public a window
       into the decision-making process and an explanation of the purposes the
       sentence is intended to serve. It promotes respect for the adjudicative
       process, by demonstrating the serious reflection and deliberation that
       underlies each criminal sentence, and allows for effective appellate
       oversight.

Id. at 572. Our opinion today does not derogate from the principle that a

contemporaneous explanation of the rationale should accompany the pronouncement of

sentence.

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



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