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


3-14-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1398




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                                                           NOT PRECEDENTIAL


  UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                 No. 06-1398



                      UNITED STATES OF AMERICA,

                                      v.

                             GEORGE SMITH,
                                                     Appellant



                On Appeal from the United States District Court
                    for the Middle District of Pennsylvania
                       (D.C. Criminal No. 05-cr-00314)
                   District Judge: Hon. James M. Munley




                  Submitted Under Third Circuit LAR 34.1(a)
                               March 5, 2007

Before: SLOVITER and AMBRO, Circuit Judges, and BRODY,* District Judge

                           (Filed: March 14, 2007)



                                  OPINION




            *
              Hon. Anita B. Brody, United States District Court for the
      Eastern District of Pennsylvania sitting by designation.
BRODY, District Judge

       On September 8, 2005, appellant/defendant George Smith pleaded guilty pursuant

to a plea agreement to interference with a federal officer in violation of 18 U.S.C. § 115.

On January 17, 2006, Smith was sentenced to 84 months imprisonment consecutive to

another sentence Smith was already serving for an unrelated crime. In this appeal, Smith

claims that his sentence is unreasonable because the District Court failed to properly

articulate its consideration of the 18 U.S.C. § 3553(a) sentencing factors, thus depriving

this Court of a proper basis for review. Smith also claims that the District Court erred by

treating the Guidelines as mandatory and not reasonably exercising its discretion when it

imposed the sentencing. We will affirm.

I.     Facts and Procedural History

       According to the Presentence Investigation Report1 (“PSR”), on October 3, 2003

Smith was serving a sentence at the Schuylkill Federal Correctional Institution for an

unrelated crime when he slipped a note threatening to kill the prison warden underneath a

door leading to correctional staff offices. PSR ¶¶ 4-5. Smith readily admitted his guilt

and explained that he had no intent to harm the warden, but rather was trying to trigger a

security lock-down because he felt threatened by two other inmates who wanted to collect

on a gambling debt. PSR ¶6, 9. Under the Guidelines, because Smith was a career



                    1
                    Neither party objected to the PSR, and the court adopted
            it without change. Appendix to Defendant’s Appellate Brief
            (“App.”) at 53.

                                             -2-
offender2 and committed the crime at issue while imprisoned, his sentencing range was 77

to 96 months running “consecutively to the undischarged term of imprisonment.” PSR

¶46.

       In both a sentencing memorandum and at the sentencing hearing, Smith’s counsel

emphasized “the history and characteristics of the Defendant, which is one of the factors

that the Court can consider under Section 3553(a).” App. at 55. Smith had many

difficulties in his life, including neglectful parents, sexual abuse, and a gambling

addiction. App. 55-59. Smith’s life “changed completely” when he was incarcerated at

age 20. App. at 56. Since then, despite making numerous “mistakes” (“way more in the

last eight years than he did in the first 20 years”), App. at 57, Smith has acknowledged

culpability, completed educational programs, and enrolled in drug and alcohol programs

in hopes of treating his gambling problem. Defendant’s Sentencing Memorandum

(“Memo”) at 5. Counsel also touched upon other Section 3553 factors for the Court to

consider, including the need to avoid unwarranted disparities among similarly situated

defendants, the types of sentences available, and a Sentencing Commission report

regarding recidivism. Memo at 8-9. Based on these considerations, and the fact that



                    2
                      At age 20, while Smith was in the Army, he kidnapped an
             officer at gun point and was subsequently convicted of larceny,
             robbery, forcible sodomy, kidnapping, indecent assault and
             communication of a threat. An army court sentenced him to 15
             years imprisonment. While imprisoned at Fort Leavenworth, Smith
             was convicted of conspiracy to commit arson, damage to military
             property fire, and communicating a threat. PSR ¶¶22-3.

                                             -3-
Smith still had four more years to serve on his prior sentence, his counsel argued that a

sentence at the lowest end of the Guidelines range (77 months imprisonment) to run

concurrent with the prior sentence was sufficient to satisfy the Section 3553(a) factors.

Memo at 9-10; App. at 57-58.

       At the sentencing hearing, the Court heard defense counsel’s arguments and also

stated that it had read counsel’s sentencing memorandum and found it “pretty

straightforward.” App. at 53, 59. The Court also heard Smith himself, who apologized

for and explained his reason for writing the threatening note. Smith expressed his desire

for treatment for his sexual offender and gambling problems, to which the Court agreed.

       The District Court began its ruling by noting that a sentence must satisfy the

purposes set forth in 18 U.S.C. § 3553(a), and listed the factors. App. at 60-61. The Court

then continued:

                I’m impressed with what [defense counsel] did in her sentencing
       memorandum and her statements here today and your statement, and I
       recognize that you tried to make some progression at the jail, and I
       recognize the problems that you faced as a child growing up, but it is a
       difficult thing to sentence someone like you, because while we appreciate
       everything that is said here so far, but we cannot afford, in this critical area
       of law enforcement and penology, to send out the wrong kind of message.
                We have so many people who are being treated this way behind bars,
       and we just cannot afford it. It is such a serious offense. You understand
       that, I think, and intent aside, what you put into operation, and it is of
       maximum importance that these people, whether a warden or anyone else in
       these institutions can’t be interfered with in performing their duties and
       down to any, whatever capacity they’re in, and the potential of being
       harmed by inmates is just totally unacceptable, and that interference with
       the ability of those people who perform their function is of critical
       importance, George, in our society today.


                                             -4-
App. at 61-62. The Court further noted: the violent and serious nature of Smith’s past

crimes, including robbery and sodomy by gunpoint, and conspiracy to commit arson

(“That is really heavy stuff”); that Smith had an unfavorable history of multiple prison

rule infractions while imprisoned; and that Smith was “a young guy.” App. at 62.

       The Court sentenced Smith to 84 months imprisonment, a $100 special assessment,

and three years of supervised release. It also ordered that Smith be given counseling for

his gambling addiction and put into a sex treatment program. App. at 62-65.

II.    Discussion3

       After United States v. Booker, 543 U.S. 220 (2005), this Court reviews sentencing

judgments for reasonableness under a two-part test set forth in United States v. Cooper,

437 F.3d 324 (3d Cir 2006). A sentence is reasonable if the sentencing court 1) exercised

its discretion by giving “meaningful consideration” to the factors listed in 18 U.S.C. §

3553(a), and then 2) “reasonably applied those factors to the circumstances of the case.”

Cooper, 437 F.3d at 329- 30. To satisfy the meaningful consideration requirement, a

“rote statement of the § 3553(a) factors” alone is insufficient. Id. at 329. On the other

hand, a district court is not required to discuss and make findings as to each of the §

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

sentencing.” Id.; United States v. Vargas, 2007 U.S. App. LEXIS 3486 *16 (3d Cir.


                     3
                        We have jurisdiction to review a sentence for
            reasonableness. See United States v. Cooper, 437 F.3d 324, 327-
            28 (3d Cir. 2006) (finding that jurisdiction lies under 18 U.S.C. §
            3742(a)(1) and may also exist under 28 U.S.C.§ 1291).

                                             -5-
2007). To satisfy reasonable application, we ask “whether the district judge imposed the

sentence he or she did for reasons that are logical and consistent with the factors set forth

in section 3553(a).” Cooper at 330. On review, we apply a deferential standard. Id.

The party challenging the reasonableness of a sentence bears the burden of establishing

that the sentence is unreasonable based on the record and Section 3553(a) factors. Id. at

332.

       A.     Meaningful Consideration

       Smith contends that his sentence was unreasonable because the District Court

failed to satisfy the “meaningful consideration” requirement. Specifically, because the

Court did not state explicitly and with specificity its reasons for the sentence imposed, it

failed to create a record demonstrating meaningful consideration of the Section 3553(a)

sentencing factors. The shortcomings include: not mentioning which of the Section

3553(a) subsections were being considered; not comparing Smith’s 84-month sentence

with sentences of similarly situated defendants; including no additional written

explanation of Smith’s sentence in the Statement of Reasons; and not explaining why an

84-month sentence, imposed consecutively, reflected the seriousness of the offense,

promoted respect for law, and provided just punishment and deterrence, as required under

Section 3553(a)(2) and 3553(c), while a lesser sentence – e.g., 77 months to run

concurrently – would not. Without these clear and detailed statements, Smith argues, the

District Court’s ruling is unreviewable by this Court, and thus not legally sufficient.

       As a threshold matter, district courts are not required to expressly address in detail

                                             -6-
how each of the Section 3553(a) factors impacts their sentencing decision if it is clear

from the record that the factors were in fact taken into consideration. See United States v.

Charles, 467 F.3d 828, 831 (3d Cir. 2006) (holding that district courts need not fully and

explicitly articulate their consideration of each Section 3553(a) factor when giving

reasons for imposing a sentence); United States v. Scott, 426 F.3d 1324, 1329 (11th

Cir.2005) (holding “nothing in Booker or elsewhere requires the district court to state on

the record that it has explicitly considered each of the § 3553(a) factors or to discuss each

of the § 3553(a) factors”) (cited with approval in Cooper at 329). Rather, a sentence is

reviewable for “meaningful consideration” when district courts “‘state adequate reasons

for a sentence on the record so that [we] can engage in meaningful appellate review.’

[W]e will not elevate form over substance.” United States v. Dragon, 471 F.3d 501, 505-

6 (3d Cir. 2006) (quoting United State v. Charles, 467 F.3d 828, 831 (3d Cir. 2006)

(quoting United States v. King, 454 F.3d 187, 196-7 (3d Cir. 2006))). Reasonable

sentences require meaningful consideration of only “relevant ” factors. Charles, 467 F.3d

at 831 (original emphasis) (quoting Cooper, 437 F.3d at 329). Furthermore, the court

need not address arguments made by the defendant that are “clearly without merit.”

Cooper, 437 F.3d at 329.

       Based on our review of the record, it is clear that the District Court gave

meaningful consideration to the relevant 3553(a) factors. For example, the Court adopted

without change the PSR, which comprehensively reviewed defendant’s history, the

circumstances of the offense at issue, and sentencing options (e.g., custody, supervised

                                             -7-
release, probation, fine, and restitution). The Court also stated that it read, understood,

and was “impressed” with arguments in defendant’s sentencing memo, which addressed

defendant’s background, the circumstances of this offense, the need to avoid unwarranted

sentencing disparities, the types of sentences available (concurrent or consecutive), and

Sentencing Commission reports. Many of these same arguments were also repeated

during the hearing, such as defendant’s youth and attempts at overcoming his gambling

addiction. The Court also heard testimony from defendant himself about the reasons for

his actions. See United States v. Vargas, 2007 U.S. App. LEXIS 3486, *21 (3d Cir.

2007) (finding that 18 U.S.C. § 3553(a)(1) was meaningfully considered after defendant

discussed his background and offense in court). The Court considered § 3553(a)(4) by

consciously sentencing within the Guidelines, which makes it more likely that the

sentence was reasonable. Cooper, 437 F.3d at 330-31.

       The Court naturally focused its ruling on certain factors that it deemed to outweigh

others. It stated that interfering with the duties of correctional officers by threat of harm

was “of maximum importance,” “totally unacceptable,” and “of critical importance.” The

Court clearly felt that the requirements for the sentence to account for the nature of the

offense, 18 U.S.C. § 3553(a)(1), to promote respect for the law, 18 U.S.C. §

3553(a)(2)(A), and to deter similar activity, 18 U.S.C. § 3553(a)(2)(B), far outweighed

the history and characteristics of the defendant, 18 U.S.C. § 3553(a)(1). Mere brevity in

addressing other possible mitigating circumstances does not per se constitute error.

United States v. Jackson, 467 F.3d 834, 842 (3d Cir. 2006).      Based on the record, we are

                                              -8-
satisfied that the Court meaningfully considered the Section 3553(a) factors, but

ultimately considered certain factors less relevant or irrelevant to the circumstances of the

case.

        B.     Reasonable Application

        Smith also argues that his sentence is unreasonable because it fails the second

prong for the Cooper test: reasonable application of the Section 3553(a) factors to the

circumstances of this case. Instead of applying the factors reasonably, Smith argues, the

District Court treated the Guidelines as mandatory.

        Defendant’s latter conclusion is not only unsubstantiated but also contrary to the

record. The Court certainly took note of the correct sentencing range under the

Guidelines, as is proper under both § 3553(a)(4) and this Circuit’s case law. See United

States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006) (holding that sentencing courts should

first correctly calculate the Guidelines range). But the Court began its ruling by stating,

“In passing sentence on you, the sentence I will impose satisfies the purposes set forth in

18 U.S.C., Section 3553(a),” and listing those factors. App. at 60-61. The District Court

was not required to state that it knew the Guidelines were only advisory after Booker, but

we are satisfied that it was aware of this and ruled accordingly.

        The sentence imposed by the District Court was logical and consistent with the

Section 3553(a) factors. These factors require a sentencing court to consider the nature

and seriousness of an offense, deterrence (both specific and general), and protection of

the public. § 3553(a)(1), (a)(2)(A) - (C). These considerations logically warrant a

                                             -9-
punishment more serious than that requested by Smith. Smith’s two prior criminal felony

convictions both involved communicating a threat in conjunction with either a violent

crime (robbery, sodomy) or conspiracy to commit a violent crime (conspiracy to commit

arson). Furthermore, as the Court stressed, given the close confines of a prison and the

importance of maintaining order inside, it is important not to send a wrong message to

other inmates by an overly lenient sentence. In a separate written judgment, the court

also formally recommended that the Bureau of Prisons “afford the defendant the

opportunity to participate in gambling addiction treatment” and “to participate in sexual

offender assessment and/or treatment.” App. at 4. This logically relates to Smith’s need

for medical care and correctional treatment under § 3553(a)(2)(D).

       We apply a deferential standard when reviewing application of the Section 3553(a)

factors because the trial court is in “the best position to determine the appropriate

sentence in light of the particular circumstances of the case.” Cooper, 437 F.3d at 330.

The Court was not required to compare a 77-month concurrent sentence with an 84-month

consecutive one. “[R]easonableness is a range, not a point.” United States v.

Cunningham, 429 F.3d 673, 679 (7th Cir. 2005) (quoted in Cooper, 437 F.3d at 332 n.

11). The 84-month sentence in this case is still one year less that the Guidelines

maximum sentence and three years less than the statutory maximum. We cannot say that

this was unreasonable.

III.   Conclusion

       Smith has not met his burden of showing that the sentence imposed by the District

                                             -10-
Court was unreasonable. The fact that the Court did not discuss in depth each of the

Section 3553(a) factors does not mean that it did not consider them. We are satisfied that

it did, as it emphasized the importance of certain factors over others. We are also

satisfied that the Court reasonably applied these factors to the circumstances of this case.

The judgment of sentence is affirmed.




                                            -11-
