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


1-11-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1035




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Recommended Citation
"USA v. Leader" (2007). 2007 Decisions. Paper 1776.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1776


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                                                           NOT PRECEDENTIAL


                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT




                                  No. 06-1035




                     UNITED STATES OF AMERICA;
                  GOVERNMENT OF THE VIRGIN ISLANDS
                                 v.
                       SAMUEL ROGER LEADER,
                                 Appellant

                        On Appeal from the District Court
                               for the Virgin Islands
                              (D.C. No. 03-cr-00142)
                   District Judge: Honorable Raymond L. Finch




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

                  Before: MCKEE, BARRY AND STAPLETON,
                             CIRCUIT JUDGES

                            (Filed: January 11, 2007)


                             OPINION OF THE COURT




MCKEE, Circuit Judge.
       Samuel Roger Leader appeals the sentence that was imposed after he pled guilty

to illegally reentering the United States in violation of 8 U.S.C. § 1326. For the reasons

that follow, we will remand to the district court for resentencing pursuant to our decision

in United States v. Cooper, 437 F.3d 324 (3d Cir. 2006).

                                              I.

       Inasmuch as we are writing primarily for the parties who are familiar with this

case, we need not recite the factual or procedural history except insofar as is helpful to

our brief discussion. It is, however, important to note that the district court gave the

following explanation of this sentence at the sentencing:

              THE COURT: Mr. Leader, I note that the sentencing
              guidelines are, ... advisory, but that being so, I must find
              some reasonable compelling factors to invoke liability to
              ignore the guidelines.

                I have heard none. None at all. I accept the
              recommendations and findings of the Office of Probation. I
              will therefore [sentence you to] the Bureau of Prisons for
              fifty-one months. ...

              This is your sentence, sir, do you have any questions?


App. 28-29.

       The government argues that there was no error at sentencing, and that even if

there was, the defendant’s failure to object to the sentence that was imposed requires that

we review for plain error only, a standard which the government claims the defendant

cannot meet. Appellee’s Br. at 6. In fact, the government interprets Leader’s challenge

                                              2
to the sentence at this point as being tantamount to a claim that he was denied effective

assistance of counsel because his attorney did not object. The government also claims

that Leader is not entitled to relief because, “even if Leader had preserved his sentencing

issue, his sentence is reasonable.” Id. at 9. According to the government, the sentence

was reasonable because the district court “heard argument from the defense and

prosecution and gave meaningful consideration to the § 3553 factors.” Id. We cannot

agree.

         It is clear from the aforementioned excerpt from the sentencing hearing that the

district court did not give adequate consideration to 18 U.S.C. § 3553. In fact, from this

record we cannot be certain the court gave any consideration to the sentencing factors set

forth in that provision other than the sentencing guidelines.

         We do, however, agree that our review is limited to whether the district court

committed plain error in imposing the sentence. In order to establish plain error in the

imposition of a sentence, a defendant must establish an error, that is plain, and that

affected substantial rights of the defendant. United States v. Evans, 155 F.3d 245, 251

(3d Cir. 1998). In Cooper, we stated, “district courts must impose sentences that

promote the sentencing goals listed in 18 U.S.C. § 3553(a).” 437 F.3d at 225-26. It is

now clear that a sentence that is imposed without giving adequate consideration to those

factors is, by definition, “imposed in violation of the law,” and therefore unreasonable.

See Cooper, 437 F.3d at 328. In order to ensure that a sentence is properly imposed,


                                              3
“[t]he record must demonstrate the trial court gave meaningful consideration to the

§3553(a) factors.” Id., at 329. “The court need not discuss every argument made by a

litigant . . . Nor must the court discuss and make findings as to each of the §3553(a)

factors . . ..” Id. However, the record must contain a sufficient reference to those factors

to allow us to review for reasonableness. Where, as here, the defendant has advanced

non-frivolous arguments based on the § 3553(a) factors, some articulation of the court’s

thoughts regarding them is a necessary predicate for our review. United States v.

Jackson, 467 F.3d 834, 841 (3d Cir. 2006).

       This record contains no discussion of the § 3553(a) factors at all or the arguments

advanced by the defense in reliance thereon. Rather, it contains only the aforementioned

statement that the district court would impose a sentence pursuant to the sentencing

guidelines absent “compelling factors to . . . ignore the guidelines.” This approach to

sentencing is clearly in violation of the sentencing regime that continues to evolve in the

wake of Booker and its progeny.

       As we have previously noted, a sentence that is within the appropriate guideline

range is not, by that fact alone, a reasonable sentence. In Cooper, we explained that “[a]

sentence that falls within the guidelines range is more likely to be reasonable than one

outside the guidelines range [,]” 437 F.3d at 331, but we refused to usher in a new round

of mandatory guidelines by suggesting that a sentence that falls within the guidelines is

necessarily reasonable.


                                             4
       Given the discussion in Cooper, as well as United States v Davis, 407 F.3d 162,

164-65 (3d Cir. 2005), it is clear that the sentence that was imposed here cannot be

sustained on this record, and that the district court must be afforded another opportunity

to impose a sentence based upon a consideration of all of the factors in §3553(a), not

merely on the guidelines alone.1

                                            II.

       For the foregoing reasons that follows we will remand this case to the district

court of the Virgin Islands for resentencing pursuant to United States v. Booker.




       1
       Because we are vacating Leader’s sentence and remanding his case for
resentencing, we need not address his ineffective assistance of counsel claim.

                                             5
