                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-10-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2258




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

Recommended Citation
"USA v. Austin" (2009). 2009 Decisions. Paper 1892.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1892


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    No. 07-2258


                         UNITED STATES OF AMERICA

                                         v.

                                CHYQUIN AUSTIN
                                      a/k/a Q.B.
                               a/k/a LITTLE HOMIE

                                              Chyquin Austin,
                                                    Appellant




                    Appeal from the United States District Court
                             for the District of New Jersey
                    (D.C. Criminal Action No. 03-cr-00844-22)
                   District Judge: Honorable Katharine S. Hayden


                    Submitted Under Third Circuit LAR 34.1(a)
                                January 27, 2009

        Before: SCIRICA, Chief Judge, AMBRO, and SMITH, Circuit Judges

                         (Opinion filed : February 10, 2009)




                                     OPINION


AMBRO, Circuit Judge

     Chyquin Austin pled guilty to two racketeering counts based on his involvement in
a violent gang-related crime. Since 2002, Austin had been a member of an Essex County,

New Jersey street gang known as the Double II Bloods, which is a sect of the Bloods, a

nationwide gang. During a stint at the Essex County Jail in August 2003, he brutally

slashed the face of a fellow gang member.1

       Austin appeals his sentence of 55 months’ imprisonment and three-years’

supervised release.2 The Government contends the sole issue Austin presents on appeal

is whether his three-year term of supervised release was reasonable. Austin’s argument is

not that straightforward, however. His appeal pertains to the 30 months he spent

incarcerated in the Passaic County, New Jersey Jail (the “PCJ”) between his arrest and

sentencing.3 For purposes of appealing his sentence, Austin requests relief from his


   1
    This type of violent attack is not uncommon within the Bloods. The formal gang
structure allows senior leadership to control the criminal activity that members of the
gang carry out. If another gang member is suspected of “snitching,” or cooperating with
law enforcement, gang members incarcerated in the same facility as the “snitch” may be
ordered to retaliate against that target. The retaliation may include killing or slashing the
face of the target. Here, Austin and other Double II Bloods incarcerated in the Essex
County Jail were ordered by more senior gang members to attack one of their own who
was believed to be a “snitch.” They beat the person to unconsciousness and Austin
repeatedly slashed his face. The resulting scars indicate to gang members, among others,
that he is a “snitch.” Austin admitted to these facts during his guilty plea colloquy.
   2
    He was sentenced to concurrent terms of 55 months’ imprisonment and three-years’
supervised release on the racketeering count in violation of 18 U.S.C. § 1959(a)(3) and 2,
and 36 months’ imprisonment and one-year supervised release on the conspiracy
racketeering count in violation of § 1959(a)(6).
   3
    The 30 months spanned the time from Austin’s arrest in late October 2004 to his
sentencing date on April 18, 2007. He was indicted by a federal grand jury on February
10, 2005 as part of a 66-count Second Superseding Indictment. The Indictment charged
numerous Double II Bloods’ gang members with a wide range of violent and drug-related

                                              2
supervised release term because he is set to be released from prison in May 2009. He

further contends that “[t]he District Court unreasonably did not consider the conditions at

[the PCJ] at all in setting the term of supervised release at three years.” Although this

argument specifies only his supervised release, the substance of his appellate brief also

discusses the unreasonableness of his term of imprisonment in light of the “squalid

conditions” at the PCJ.

       This appears to conflate two arguments. See United States v. Jackson, 523 F.3d

234, 24–41 (3d Cir. 2008) (explaining that in appealing a sentence, a defendant can

challenge only his supervised release, only his imprisonment, or both). We view Austin’s

challenge to his sentence in two parts, both related to the conditions at the PCJ: (1)

whether his term of imprisonment was unreasonable; and (2) whether his term of

supervised release was unreasonable. We hold that both were reasonable, and thus affirm

the District Court.4

                                              I.

       At the sentencing hearing, the District Court heard arguments from both parties

concerning Austin’s request for a downward departure based on the 30 months he spent in



racketeering crimes. Many of these defendants spent significant time at the PCJ awaiting
sentencing. Austin was one of the first defendants to plead guilty in December 2005. In
2006, while in the PCJ awaiting sentencing, Austin filed two motions for speedy
sentencing and dismissal, which were dismissed by the District Court.
   4
    It had subject matter jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

                                              3
the PCJ and its notoriously poor conditions of confinement. Austin’s argument to the

Court was somewhat confusing, but we interpret it in the same manner it appears the

District Court did—as an argument for a formal downward departure from the federal

Sentencing Guidelines’ range under U.S. Sentencing Guidelines Manual (hereinafter

“U.S.S.G.”) § 5K2.0 (“Grounds for Departure (Policy Statement)”), and alternatively as

an argument for a downward variance on the same ground based on the advisory nature of

the Guidelines post-Booker.

       Austin’s counsel did not provide specific details regarding Austin’s term of

confinement and the conditions he endured at the PCJ. Instead, counsel referred to a

newspaper article and letters sent by Austin to the Court concerning the conditions at the

PCJ. He also relayed Austin’s eagerness to serve his sentence in a Bureau of Prisons’

facility so that he would have the opportunity to take advantage of the educational

opportunities it offers and to earn good-time credits. Counsel highlighted that Austin

obtained a GED while incarcerated despite the limited opportunities at the PCJ.

       The Government argued that Austin’s reasons were not sufficient to warrant a

downward departure or variance. Although its position was that the Court should not

consider the PCJ confinement in sentencing Austin, it acknowledged that the conditions

at the PCJ were bad, and if the Court chose to take this into consideration it should only




                                             4
do so in determining a proper sentence within the Guidelines’ range of 51 to 63 months.5

       The Court acknowledged that it was aware of the tough conditions for inmates at

the PCJ, yet it declined to depart downward on this basis. It agreed to “consider [Austin’s

time at the PCJ] as part of the history and characteristics of the defendant’s portion of the

sentencing statute” under 18 U.S.C. § 3353(a). In considering the § 3353(a) factors, the

Court lauded Austin’s GED achievement, “even in deplorable conditions in [the PCJ],”

and noted his intentions for his future and the family members who cared about him. This

was outweighed, however, by, among other things, the “savage nature” of the offense. It

determined that a within-Guidelines’ sentence was appropriate, but the top of the

Guidelines’ range was “heavier than is necessary considering [Austin’s] history and

characteristics.” The Court concluded that the appropriate sentence of imprisonment was

in the mid-range of the Guidelines, 55 months, which meant Austin would serve

approximately two years in prison after crediting his time in the PCJ.

       The Court then considered the appropriate term of supervised release. The

statutory maximum was three years. See 18 U.S.C. § 3583(b)(2), (e)(1). The Guidelines

state that a district court “shall order a term of supervised release to follow imprisonment

when a sentence of imprisonment of more than one year is imposed,” and recommends

between two and three years of supervised release. U.S.S.G. §§ 5D1.1(a), 5D1.2(a)(2).




   5
    The Guidelines’ range was based on Austin’s criminal history category of III and total
offense level of 22. Austin does not dispute this calculation.

                                              5
       The Court discussed Austin’s possible opportunities post-prison. Its most serious

concern was the risk of Austin getting pulled back into gang life after his release from

prison. It noted that he was an attractive gang prospect because of his height,

intelligence, and good looks. It hoped that Austin would further progress during his

remaining incarceration period so that he could “get some skills and get . . . independent

of needing the gang life to earn money and to feel good about [him]self.” To help prevent

a return to the gang and encourage a law-abiding life, the Court imposed the maximum

period of supervised release, three years, and added specific conditions. These conditions

included drug testing and drug treatment, a prohibition on frequenting known “Blood”

locations, wearing or possessing gang clothing and paraphernalia, and associating with

any gang members. Austin’s counsel did not object to the Court’s imposed term of

supervised release.

                                             II.

       “Under post-Booker jurisprudence, we review not only a term of imprisonment,

but also a term of supervised release[,] for reasonableness.” Jackson, 523 F.3d at 241

(discussing that imprisonment and supervised release are parts of a defendant’s total

sentence). The Guidelines are now advisory, and our reasonableness review of the

District Court’s sentence is a “deferential abuse of discretion standard.” United States v.

Gunter, 527 F.3d 282, 284 (3d Cir. 2008) (citing Gall v. United States, 128 S.Ct. 586,

597–98 (2007)). For a sentence to be procedurally reasonable, sentencing judges must



                                             6
follow a three-step sentencing process: (1) calculate the defendant’s Guidelines’ sentence;

(2) rule on motions of both parties and “state on the record whether they are granting a

departure and how that departure affects the Guidelines calculation”; and (3) “exercise

their discretion by considering the relevant [18 U.S.C.] § 3553(a) factors in setting the

sentence they impose regardless whether it varies from the sentence calculated under the

Guidelines.” Id. (internal quotations omitted) (alteration in original) (quoting United

States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006)).

       “Assuming that the district court’s sentencing decision is procedurally sound, the

appellate court should then consider the substantive reasonableness of the sentence

imposed under an abuse-of-discretion standard.” Gall, 128 S.Ct. at 597. It is “less likely

that a within-[G]uidelines’ sentence, as opposed to an outside-[G]uidelines’ sentence, will

be unreasonable.” United States v. Cooper, 437 F.3d 324, 331 (3d Cir. 2006). “As long

as a sentence falls within the broad range of possible sentences that can be considered

reasonable in light of the § 3553(a) factors, we must affirm.” United States v. Wise, 515

F.3d 207, 218 (3d Cir. 2008) (citation omitted).

                                              III.

       Before assessing the merits of Austin’s claims relating to the reasonableness of his

term of incarceration, we address a potential jurisdiction issue. Austin’s counsel states

that “it is too late for [Austin] to benefit from a reduction in his term of incarceration.

Instead, [he] seeks relief as to the supervised release component of his sentence.” As



                                               7
noted, Austin is scheduled to be released in May 2009. In challenging his sentence,

Austin was not certain whether he would still be imprisoned during the pendency of his

appeal. We note that if his term of imprisonment was complete, we would have to

consider whether his appeal is moot or the doctrine of “collateral consequences” applies

to give us jurisdiction.6 Since Austin is still incarcerated at this point, his present

circumstance raises no question whether we have jurisdiction to consider a challenge to

his term of imprisonment.

       At sentencing, Austin briefly argued for a downward departure on the basis of the

Guidelines’ section setting out the general grounds for departures. U.S.S.G. § 5K2.0(a)



   6
    A defendant who is serving a term of supervised release and challenges his completed
sentence of imprisonment must show collateral consequences to present a live case or
controversy under Article III of the Constitution. Jackson, 523 F.3d at 241. In Jackson,
we held that collateral consequences include “the possibility of a credit for improper
imprisonment against a term of supervised release.” Id. (citing United States v. Cottman,
142 F.3d 160, 165 (3d Cir. 1998)); see also United States v. Prochner, 417 F.3d 54, 59
n.4 (1st Cir. 2005) (holding that although the defendant was released from prison, his
appeal was not moot because he is serving a term of supervised release as part of his
sentence). Jackson recognized that other circuits are split on this issue, but found support
for its holding in United States v. Johnson, 529 U.S. 53, 60 (2000):

       The trial court, as it sees fit, may modify an individual’s conditions of
       supervised release. [18 U.S.C.] § 3583(e)(2). Furthermore, the court may
       terminate an individual’s release obligations “at any time after the expiration
       of one year . . . if it is satisfied that such action is warranted by the conduct of
       the defendant released in the interest of justice.” [18 U.S.C.] § 3583(e)(1).

523 F.3d at 239 (alterations in original) (quoting Johnson, 529 U.S. at 60). Thus, if a
defendant is serving a sentence of supervised release during the pendency of his appeal, a
challenge to an unreasonably long sentence (or term of imprisonment) would not be moot.


                                                8
(referencing 18 U.S.C. § 3553(b)). The District Court declined to exercise its discretion

to depart downward.7 We therefore lack jurisdiction to review that discretionary decision.

United States v. Minutoli, 374 F.3d 236, 239 (3d Cir. 2004).

       Austin also argues, albeit indirectly, that the District Court’s decision not to vary

from the Guidelines in consideration of the § 3553(a) factors was unreasonable. He

supports his argument by comparing his circumstances at the PCJ to those in United

States v. Sutton, No. 07-426, 2007 WL 3170128 (D.N.J. Oct. 25, 2007). In Sutton, the

same District Court held an extensive hearing and granted the defendant a variance below

the Guidelines’ range based on the conditions at the PCJ.8 Id. at *9 (stating “the logical


   7
    We take note that several district courts (although only in non-published opinions)
have determined that extraordinary conditions of confinement potentially warrant a
downward departure, even though pretrial confinement is not a factor listed in the
Sentencing Guidelines. See, e.g., Pelaez v. United States, No. 08-0600, 2008 WL
4004573, at *4 (D.N.J. Aug. 25, 2008) (not for publication); Isaza v. United States, No.
06-2687, 2007 WL 2226015, at *3 (D.N.J. Aug. 1, 2007) (not for publication). The
Supreme Court recognized in Koon v. United States that factors not mentioned in the
Guidelines can serve as a basis for a downward departure, but these departures will be
“highly infrequent.” 518 U.S. 81, 93–96 (1996). A departure based on the unusual and
deplorable conditions of the defendant’s pretrial detainment is “highly infrequent.”
Pelaez, 2008 WL 4004573, at *4; see also United States v. Sutton, 973 F. Supp. 488, 493
(D.N.J. 1997) (“Unusual pretrial confinement, . . . in either length or severity of
condition, can properly be considered by the sentencing court.”). Pelaez cited several
district court decisions from our Circuit to demonstrate the infrequency of the departure,
including the highly unusual circumstances endured by those defendants who have
received a departure (e.g., being subject to physical or sexual abuse while in prison), and
the circumstances in which defendants were not granted a departure (e.g., a defendant
spent one year in a deplorable Columbian prison, which was overcrowded, had no
running water, and an infestation of rodents). Pelaez, 2008 WL 4004573, at *4.
   8
    The District Court reached a similar conclusion in two subsequent cases. See United
States v. Ortiz, Nos. 06-858 & 07-256, 2007 WL 4208802 (D.N.J. Nov. 27, 2007)

                                              9
way of acknowledging [the defendant] was punished ‘more than was necessary’ under

conditions that violate one of the goals of a reasonable sentence[] is to reduce the extent

of the overall sentence he must serve”). The Court attributed its variance decision to

§ 3553(a) factors (2)(A) and (D). Id. at *8–9; see also 18 U.S.C. § 3553(a)(2)(A), (D)

(addressing “the need for the sentence imposed . . . (A) . . . to promote respect for the

law . . . [and] (D) to provide the defendant with needed educational or vocational training,

medical care, or other correctional treatment”).

       Here, the Court discussed Austin’s argument about conditions at the PCJ,

acknowledging the severity of the problem at that facility. It determined, however, that

Austin’s violent gang-related offense was too serious to warrant a variance from the

Guidelines’ range. Instead, it took the PCJ conditions and other factors into account in

concluding that a top of the Guidelines’ range sentence would be more punishment than

necessary, but a mid-range Guidelines’ sentence was appropriate for Austin based on the

§ 3553(a) sentencing factors. It made an “individualized assessment based on the facts




(supplemental opinion) (supplementing its sentencing decisions that granted downward
variances for two defendants in unrelated cases, Ortiz and Garcia-Pagador, of 8 and 12
months, respectively, to match the time each defendant spent at the PCJ and relying on
the § 3553(a) factors after extensive sentencing hearings concerning the PCJ conditions).
The Court stated that “[i]n the future, this Court will entertain an application by a
defendant facing sentencing who was a pre-trial detainee at the [PCJ], to incorporate the
prior testimony about jail conditions into the record at his or her sentencing.” Id. at *6.
The Court noted that a “formulaic approach” to this issue is not appropriate and “[t]his
does not mean that conditions in [the PCJ] are the only considerations to be weighed by a
sentencing judge.” Id.

                                             10
presented.” Gall, 128 S.Ct. at 597. In this context, Austin’s sentence of 55 months’

imprisonment was reasonable and the Court did not abuse its discretion in setting this

within-Guidelines’ sentence.

                                              IV.

       Austin’s second challenge is to his three-year term of supervised release. He

argues that the District Court erred because it “gave no weight to the conditions of

confinement in assessing how long [he] would serve on supervised relief.” At sentencing,

Austin argued for a reduced term of imprisonment based on his incarceration at the PCJ,

but did not object to the term of supervised release on similar, or any, grounds.

Therefore, our reasonableness review of the Court’s term of supervised release is for

plain error. A defendant must satisfy a four-prong test to be successful under plain error

review: there is (1) an error; (2) that is plain; (3) which affects substantial rights; and (4)

seriously impairs the fairness, integrity, or public reputation of judicial proceedings.

United States v. Olano, 507 U.S. 725, 732 (1993).

       Although it appears Austin is correct that at the sentencing hearing the Court did

not give any weight to this factor in determining his term of supervised release, it did not

err, much less plainly err, in failing to do so. “Sentencing courts, in determining the

conditions of a defendant’s supervised release, are required to consider” the applicable

§ 3553(a) factors. United States v. Johnson, 529 U.S. 53, 59–60 (2000); see also 18

U.S.C. § 3583(c). “[I]mprisonment and supervised release are designed to serve very



                                               11
different purposes.” United States v. Joseph, 109 F.3d 34, 38 (1st Cir. 1997) (citations

omitted). The term and conditions of supervised release “illustrate that [], unlike

incarceration, [it] provides individuals with postconfinement assistance.” Johnson, 529

U.S. at 60 (citation omitted). “Congress intended supervised release to assist individuals

in their transition to community life. Supervised release fulfills rehabilitative ends,

distinct from those served by incarceration.” Id. at 59 (citations omitted). Unlike the

length of a term of imprisonment, the length of a term of supervised release is not based

on a defendant’s offense level or advisory Guidelines’ range, but rather on the grade of

the defendant’s crime (e.g., the class of felony). See 18 U.S.C. § 3583(b).

       At sentencing, the Court went into detail about its purpose for giving Austin the

statutory maximum of three years’ supervised release and why it added specific

conditions to his term. It was concerned about supporting his transition back into the

community as a law-abiding citizen and preventing a relapse to gang life. In this context,

Austin’s conditions of confinement at the PCJ did not relate to the underlying purpose of

supervised release, and thus did not need to be addressed by the Court. Moreover, when

it discussed supervised release at the sentencing hearing, Austin did not raise this

argument. The Court is not required to address an argument sua sponte, or one, such as

this, that is clearly not persuasive. See Cooper, 437 F.3d at 329. We thus conclude that

the Court gave “meaningful consideration” to the applicable § 3553(a) factors. See

Gunter, 527 F.3d at 284 (quoting Cooper, 437 F.3d at 329).



                                              12
                                        CONCLUSION

       For these reasons, we conclude that Austin’s sentence was reasonable. We thus

affirm the District Court’s sentence.




                                            13
