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


12-18-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1986




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Recommended Citation
"USA v. Pennix" (2006). 2006 Decisions. Paper 84.
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                                              NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 ___________

                     No. 05-1986
                     ___________

           UNITED STATES OF AMERICA

                          vs.

            WILLIAM LAVELLE PENNIX,

                          Appellant.
                     ___________

     On Appeal from the United States District Court
          for the Western District of Pennsylvania
             (D.C. Criminal No. 04-cr-00017-1)
   District Judge: The Honorable Thomas M. Hardiman
                       ___________

       Submitted Under Third Circuit LAR 34.1(a)
                   October 4, 2006

BEFORE: McKEE, AMBRO, and NYGAARD, Circuit Judges.

              (Filed: December 18, 2006)
                      ___________

              OPINION OF THE COURT
                   ___________
NYGAARD, Circuit Judge.

       Appellant William Pennix drove the get-away car for several bank robberies in the

Pittsburgh, Pennsylvania area. He pleaded guilty and was sentenced to a term of 97

months imprisonment, to be followed by a three year term of supervised release.

 On appeal, Pennix challenges the District Court’s sentence of 97 months imprisonment

while his co-defendant received an 87-month term of incarceration. Further, Pennix

maintains that the District Court erred when it actually enhanced his advisory Guideline

range based upon his reckless endangerment to the public, because he fled the crime

scene. We will affirm.

       We asked counsel for supplemental briefing addressing whether the issues raised

in Pennix’s appellate brief were properly preserved. The proper interpretation of a federal

Sentencing Guidelines provision is a legal question subject to plenary review. See, e.g.,

United States v. Jones, 332 F.3d 688, 690-91 (3d Cir.2003). However, if a defendant fails

to object to the district judge's interpretation, the issue is not properly preserved and is

subject only to plain error review. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct.

1770, 123 L.Ed.2d 508 (1993); United States v. Davis, 407 F.3d 162, 164 (3d Cir.2005).

Because the record is devoid of any attempt by counsel to challenge the discrepancy

between Pennix’s sentence and that of his co-defendant, this sentencing issue was not

properly preserved and we review only for plain error. United States v. Moore, 375 F.3d

259, 262 (3d Cir.2004) Here, our review of the record conclusively establishes that the


                                               2
District Court clearly considered the applicable Guidelines range; the nature,

circumstances and seriousness of Pennix's offense; Pennix's history and characteristics;

the need for specific and general deterrence; and the need to impose a sentence promoting

respect for the law and providing just punishment. See § 3553(a). Moreover, Pennix’s

counsel did challenge the reckless endangerment enhancement, and the District Court

agreed with him, expressly stating in the record that it would not apply the enhancement

in Pennix’s case, ruling that “. . . on these facts, I agree with Mr. Pennix’s argument as

presented very artfully by Mr. Pushinsky that imposing the enhancement under Section

3C1.2 would be improper.”

         Pennix raises a final issue, arguing that his counsel was ineffective for failing to

object to several exhibits offered by the Government that connected an automobile crash

to Pennix’s attempts to evade police after the bank robbery. As with the previous issues,

this issue was not presented to the District Court. Moreover, our established precedent

teaches that where a claim of ineffectiveness of counsel was not presented to the District

Court first, the claim is not properly preserved for review on direct appeal. United States

v. Thompson, 327 F.3d 268, 271-72 (3d Cir. 2003). It should be made by seeking review

via a writ of habeas corpus.

         Accordingly, for the foregoing reasons, we will affirm the sentence of the district

court.




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