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


8-3-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2742




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"USA v. Durkin" (2007). 2007 Decisions. Paper 624.
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                                                 NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                   __________

                       No. 06-2742
                       __________


            UNITED STATES OF AMERICA

                            v.

                  WILLIAM DURKIN,

                                     Appellant

                       __________

      On Appeal from the United States District Court
         for the Eastern District of Pennsylvania
            (D.C. Criminal No. 05-cr-00637)
        District Judge: Honorable Anita B. Brody
                       __________

        Submitted Under Third Circuit LAR 34.1(a)
                    on July 12, 2007

Before: RENDELL, AMBRO, and NYGAARD, Circuit Judges.

                  (Filed: August 3, 2007)

                       __________

               OPINION OF THE COURT
                     __________
RENDELL, Circuit Judge.

       William Durkin appeals from the sentence entered against him by the United

States District Court for the Eastern District of Pennsylvania, following his conviction on

bank robbery charges. We have jurisdiction over Durkin’s appeal pursuant to 28 U.S.C. §

1291 and 18 U.S.C. § 3742. We will affirm the District Court’s sentencing order.

                                             I.

       On November 5, 2005, Durkin was indicted in the Eastern District of Pennsylvania

on one count of bank robbery and one count of attempted bank robbery and, on January

25, 2006, he pled guilty.

       At sentencing, on May 3, 2006, the District Court determined Durkin’s offense

level to be 29, his criminal history level to be VI and, consequently, his Guidelines range

to be 151-188 months. Durkin did not object to the Guidelines calculation and did not

move for a downward departure. Instead, in his sentencing memorandum and at his

sentencing hearing, Durkin asked the Court to vary from the Guidelines range and impose

a 120 month sentence due to mitigating circumstances, such as his problems with drug

and alcohol addiction, his close relationship with his daughter, his acceptance of

responsibility and his positive job prospects.

       The District Court rejected these arguments and sentenced Durkin to 151 months,

the bottom of the Guidelines range. In doing so, the Court said:

                     All right, I recognize that, although sentencing
              guidelines are no longer mandatory, I must consider them in
              connection with all the factors set forth in 18 USC 3553-A.

                                                 2
Accordingly, I must determine what the applicable – arguably
applicable guideline ranges, and consider the applicable
policy statements. After that I must determine the facts
appropriate for imposing a reasonable sentence that is either a
guideline sentence or a non-guideline sentence . . .

....

         All right, Mr. Durkin, when you have a situation like
this, it calls for many minds to figure out what is an
appropriate sentence. And as [Assistant United States
Attorney] Wzorek so well pointed out, the guidelines are such
that this is a studied suggestions, a suggestions of people who
have taken into consideration many, many factors, one of
which is your prior history. And I – it is up to me to take into
consideration to see whether or not there are any additional
considerations that have not been encompassed in the joint
considerations of the guidelines. And when I look at the
factors that I am to consider besides the factors that were in
the guidelines, there’s no issue about the seriousness of the
offense and the effect it had on the victims.

       I think that an adequate deterrence would be either
120 months or 155 months or 188 months. But the
seriousness of the offense – the offenses is such that within
those guidelines I might have, not knowing a little bit about
you, have tended to go to the top end of the guidelines.

        Your adequate deterrence and the adequate deterrence
of the public, and the message that my sentence will send out
is accomplished by the guidelines, and I guess, to some
degree, it’s accomplished by 120 month deterrence. But with
your history, despite the fact that you have been – the fact that
you – a lot of this may have been attributed to your
alcoholism, there’s a real need in this case to protect the
public. I can’t allow you out, even though you feel very
sorry, and I’m sure you felt very sorry with every other
sentence that was imposed you, that you weren’t going to do
this again.



                               3
                      We cannot have people who are robbing banks, who
              are terrorizing terror – tellers. We can’t do it, and it’s not at
              all unreasonable to say that if you’ve done it before you – and
              you have violated twice by having prior felonies that are
              significant, that you are now a career offender. And I think
              that 155 to 188 months is a very appropriate sentence under
              those circumstances.

                      I have no – I’m giving no consideration to vocational
              training. I have no question about the fact that you are a
              union carpenter, you’re going to be able to earn a living. So
              this is not an issue at all.

                      The question becomes to me where within those
              guidelines I should sentence you. And for that reason I am
              going to take into consideration your attempts at
              rehabilitation. I will take into consideration your problems
              that you’ve had with alcohol, and you’re very, very strong
              efforts to overcome them. I am going to take into
              consideration your devotion to your daughter, which I
              consider very important. And I will sentence at the bottom of
              the guidelines, but I will sentence you within the guidelines.

Appx. at 49, 59 (emphasis added).

       Durkin argues that two aspects of the District Court’s ruling are error and require

remand. We “review factual findings relevant to the Guidelines for clear error and . . .

exercise plenary review over a district court’s interpretation of the Guidelines.” United

States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007).

                                              II.

       First, Durkin argues that the District Court “failed to recognize its statutory

mandate to impose a sentence minimally sufficient to comply with the purposes of

sentencing, instead imposing what it deemed a ‘reasonable’ sentence.” Brief for


                                              4
Appellant at 9. In Durkin’s view, when the District Court said, “I must determine the

facts appropriate for imposing a reasonable sentence that is either a guideline sentence or

a non-guideline sentence,” it betrayed its mistaken intention to treat our appellate

standard of review – “reasonableness” – as a “rule of decision” governing the type of

sentence it could impose. This, in Durkin’s view, was error.

       Second, Durkin argues that the District Court “failed to appreciate the breadth of

its authority to vary from the Guidelines, viewing itself bound by a Guidelines departure

‘heartland’ analysis.” Brief for Appellant at 9. Here, Durkin points to our decision in

United States v. Severino, where we said that “after Booker, a guidelines departure

prohibition does not preclude the district court from considering that factor when the

issue is a variance under Booker.”1 454 F.3d 206, 211 (3d Cir. 2006). In Durkin’s view,

the District Court incorrectly viewed its inability to depart downward from the Guidelines

range, under criteria governed by the Guidelines, as a restraint on its ability to rely on that

same criteria when considering whether to “vary” from the Guidelines. Specifically,

Durkin argues that by saying “it is up to me to take into consideration to see whether or

not there are any additional considerations that have not been encompassed in the joint

considerations of the guidelines,” the District Court erroneously believed that it could



  1
    Severino dealt with acceptance of responsibility and, in that context, we said:
“Therefore, if the District Court held that it could not consider extraordinary acceptance
of responsibility under the sentencing factors of § 3553(a), such error could render
Severino’s sentence unlawful under 18 U.S.C. § 3742(a)(1) and require reversal.”
Severino, 454 F.3d at 211.

                                              5
only look to non-Guidelines-contemplated factors when determining whether to award

Durkin a below-Guidelines sentence.

       We find both arguments lacking in merit.

       With respect to Durkin’s first argument, we reject the idea that the District Court’s

use of one word – “reasonableness” – reflects a misunderstanding of 18 U.S.C. § 3553(a).

Just as “a rote statement of the § 3553(a) factors should not suffice” to automatically

validate a district court’s sentence, United States v. Cooper, 437 F.3d 324, 329 (3d Cir.

2006), nor should the inclusion of a commonly used English word automatically

invalidate it. As the Supreme Court recently emphasized, appellate courts should refrain

from nit-picking the semantic choices of a sentencing court. “The law leaves much, in

this respect, to the judge’s own professional judgment.” Rita v. United States, 551 U.S.

__, 127 S. Ct. 2456, 2468 (2007). Here, we see neither an error of judgment, nor of law,

in the District Court’s choice of words.

       We are also unpersuaded by Durkin’s second argument, which, like his first one,

traffics more in form than in substance. Indeed, we read the statement of which Durkin

complains – “it is up to me to take into consideration to see whether or not there are any

additional considerations that have not been encompassed in the joint considerations of

the guidelines” – to reflect exactly the sort of consideration that the Supreme Court has

previously demanded. As we have said, “[i]n Booker, the Court explicitly directed

district courts to continue to ‘take account of the Guidelines together with other

sentencing goals.’” Cooper, 437 F.3d at 331 (quoting United States v. Booker, 543 U.S.

                                             6
220, 259 (2005)). Here, the District Court clearly indicated that it was looking to the

Guidelines “as well as any additional considerations.” In our view, this reflects the

District Court’s decision to take into account § 3553(a)(4), the provision governing the

Guidelines, as well as sections (a)(1), (2), (3), (5), (6) and (7). Indeed, as is clear from the

District Court’s ruling, it considered “deterrence,” “the seriousness of the offense,”

Durkin’s “prior history,” his “problems with alcohol” and his “devotion to [his]

daughter.” This is exactly the sort of process required by § 3553(a) and, therefore, was

not error.

                                              III.

       For these reasons, we will AFFIRM the Judgment and Commitment Order of the

District Court.

____________




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