                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-5-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2347




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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-2347


                           UNITED STATES OF AMERICA

                                             v.

                                  DAVID SERRANO,

                                                        Appellant



                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                          District Court No. 90-cr-00431-34
                         District Judge: Hon. Jan E. DuBois


            Submitted under Third Circuit LAR 34.1(a) on January 12, 2006

               Before: ROTH, FUENTES and ROSENN*, Circuit Judges

                             (Opinion Filed: April 5, 2006)



                                     OPINION




       *This case was submitted to the panel of Judges Roth, Fuentes and Rosenn. Judge
Rosenn died after submissions, but before the filing of the opinion. The decision is filed
by a quorum of the panel. 28 U.S.C. § 46(d).
ROTH, Circuit Judge:

       The United States Probation Office filed two petitions for Violations of Supervised

Release against David Serrano on April 9, 2001, and April 6, 2005.1 Given that Serrano’s

original criminal history category was III and he was convicted of a Class A felony,2 the

advisory sentencing guideline range for Revocation of Supervised Release was 30-37

months. See U.S.S.G. § 7B1.4(a). On April 15, 2005, the District Court revoked the

supervised release and sentenced Serrano to 48 months incarceration. Serrano filed a

timely appeal to this Court seeking a remand for re-sentencing. In support of his appeal,

Serrano claims that the District Court (1) failed to provide advance notice of its intention

to depart upwards from the sentencing guideline range applicable to Revocation of

Supervised Release and (2) failed to articulate its basis for the upward departure. For the

reasons stated below, we will affirm the District Court’s judgment of sentence.




   1
     The first Petition was for a Grade “C” violation and the second Petition was for a
Grade “A” violation. See U.S.S.G. §7B1.1 (classifying supervised release violations).
The first Petition was filed on April 9, 2001, as a result of Serrano being in possession of
a cup of beer and then eloping from the Community Correction Center without authority.
The second Petition was filed on April 6, 2005, as a result of Serrano’s admitted drug
dealing activity. The government withdrew a third Petition as a result of a jury acquittal
of the underlying charges.
   2
     Serrano was charged with conspiracy to distribute cocaine and cocaine base
(“crack”), in violation of 21 U.S.C. § 846, and other violations. On March 27, 1991,
Serrano pled guilty to the conspiracy charge. On January 4, 1993, the District Court
imposed a sentence of 117 months imprisonment, followed by five years supervised
release.

                                              2
                                              I.

       The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction

in accordance with 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

                                              II.

       Serrano’s first issue on appeal is that the District Court’s failure to provide

advance notice of its intention to depart upwards from the sentencing guideline range

applicable to Revocation of Supervised Release justifies a remand for re-sentencing.

       Where, as here, a defendant “failed to object to a purported error before the

sentencing court,” we review the District Court’s interpretation of law for plain error.

United States v. Couch, 291 F.3d 251, 252-53 (3d Cir. 2002) (quoting United States v.

Knight, 266 F.3d 203, 206 (3d Cir. 2001)). Revocation of Supervised Release

proceedings are subject to Fed. R. Crim. P. 32.1(b)(2) which does not expressly or

implicitly require advance notice of the sentencing court’s intention to depart upwards.3



   3
     Serrano relies on FED. R. CRIM. P. 32(h) which states: “Before the court may depart
from the applicable sentencing range on a ground not identified for departure either in the
presentence report or in a party’s prehearing submission, the court must give the parties
reasonable notice that it is contemplating such departure.” Rule 32.1(b)(2), in contrast to
Rule 32(h), does not require this advanced notice because the sentencing guideline
provisions for violations of supervised release, under U.S.S.G. § 7B1.4(a), are merely
policy statements which never have been considered mandatory. See United States v.
Schwegel, 126 F.3d 551, 552 (3d Cir. 1997). Rule 32(h) remains in full force
notwithstanding that, under United States v. Booker, 543 U.S. 220 (2005), all sentencing
guidelines must be considered advisory, rather than mandatory. Thus, although notice
would be required if this case involved a departure from a guideline range for purposes of
initial sentencing, this is not such a departure. See Burns v. United States, 501 U.S. 129,
138 (1991).

                                              3
Therefore, we conclude that the District Court was not required to notify Serrano of its

intent to impose a sentence that exceeded the range recommended under U.S.S.G. §

7B1.4(a).

                                             III.

       Serrano’s second issue on appeal is that the District Court failed to articulate its

basis for the upward departure, therefore justifying a remand for re-sentencing.

       We review a District Court’s decision to exceed the sentencing range prescribed by

U.S.S.G. § 7B1.4(a) for abuse of discretion. United States v. Schwegel, 126 F.3d 551,

555 (3d Cir. 1997); see also United States v. Blackston, 940 F.2d 877, 894 (3d Cir. 1991)

(noting that under such a standard we will only disturb a sentence if it is “plainly

unreasonable”). When a court imposes a sentence in accordance with Revocation of

Supervised Release proceedings, it must “consider” the sentencing range under U.S.S.G.

§ 7B1.4(a), as well as “state on the record its general reasons under [18 U.S.C.] section

3553(a)... for imposing a more stringent sentence.” Blackston, 940 F.2d at 893-94; see

also 18 U.S.C. § 3553(a)(5), (c). Additional factors a court must consider include: “(1)

the nature and circumstances of the offense; (2) the history and characteristics of the

defendant; (3) the need to afford adequate deterrence to criminal conduct; (4) the need to

protect the public from further crimes of the defendant; and (5) the need to provide the

defendant with appropriate treatment.” Blackston, 940 F.2d at 893-94 (3d Cir. 1991);

see also 18 U.S.C. § 3553(a); see also 18 U.S.C. § 3583(e).

       We agree that the District Court did not abuse its discretion when the sentence it

                                              4
imposed upon Serrano exceeded the sentencing range suggested under U.S.S.G. §

7B1.4(a). The record shows that the District Court explicitly acknowledged the advisory

guideline range, as well as the appropriate statutory factors for consideration. The

sentence imposed was particularly warranted given the numerous occasions on which

Serrano appeared before the District Court and the variety of failed drug rehabilitation

opportunities afforded him since he was indicted for conspiracy to distribute cocaine and

cocaine base and other related charges in the early 1990's.

                                            IV.

       For the reasons stated, we will affirm the judgment of sentence.




                                             5
