                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 11-3457
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                               LELAND ALEXANDER,
                                     Appellant
                                  _____________

                     Appeal from the United States District Court
                              for the District of New Jersey
                               (D.C. Criminal No. 11-cr-75)
                    District Judge: Honorable Dennis M. Cavanaugh
                                     _____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 13, 2012

               Before: McKEE, Chief Judge, HARDIMAN, Circuit Judge
                          and JONES, II, District Judge

                             (Opinion Filed: July 24, 2012)

                                     _____________

                              OPINION OF THE COURT
                                  _____________





 The Honorable C. Darnell Jones, II, District Judge for the United States District Court
for the Eastern District of Pennsylvania, sitting by designation.

                                            1
JONES, II, District Judge.

       On August 25, 2011, Appellant Leland K. Alexander (“Alexander”) pleaded guilty

to the charge of Felon in Possession of a Firearm, pursuant to 18 U.S.C. § 922(g)(1), and

was sentenced to serve a 78-month term of imprisonment, followed by three years of

supervised release. The sentencing court further ordered that the sentence be served

consecutively to an existing state sentence. Alexander now appeals his judgment of

sentence. For the reasons set forth below, that judgment will be affirmed.

                                             I.

       We write primarily for the benefit of the parties and thus recount only the essential

facts and procedural history.

       On or about September 10, 2008, Alexander was convicted in New Jersey‟s Union

County Superior Court, of Possession of a Weapon for an Unlawful Purpose - namely, a

paintball gun - in violation of New Jersey Statutes Annotated, Section 2C:39-4. (A44-

45). On or about August 27, 2010, Alexander knowingly possessed a top-break, sawed-

off, double-barreled, 12-gauge shotgun and six shotgun shells, outside his residence

located at 20 Shaw Avenue in Newark, New Jersey. (A44). At approximately 1 p.m. on

that date, Alexander sold the shotgun and shells to an undercover agent with the Bureau

of Alcohol, Tobacco, Firearms and Explosives in exchange for five hundred and forty

dollars ($540.00). (A44; PSR ¶¶ 1, 9-10).

       On September 29, 2010, the sawed-off shotgun was tested by the Newark Police

Ballistics Laboratory and was found to be operable and capable of being discharged.

(PSR ¶ 12). Because Alexander had been previously convicted in New Jersey on a


                                             2
weapon possession charge, local authorities referred the matter to federal authorities and

on January 26, 2011 – as Alexander was in custody on a state offense – a warrant was

issued for his arrest.

       On April 25, 2011, Alexander pled guilty in the United States District Court for

the District of New Jersey, to one charge of Felon in Possession of a Firearm, in violation

of 18 U.S.C. § 922(g)(1). (A28-50). A sentencing hearing was held on August 25, 2011,

at which time the court considered relevant statutory and guideline provisions, the Pre-

Sentence Investigation Report (“PSR”) prepared by the United States Department of

Probation, Sentencing Memoranda submitted by both sides, and oral arguments. The

court also heard information regarding Alexander‟s personal background, including his

aptitude for athletics and how his life went astray after a one-semester stint at the Berean

Institute in Philadelphia.

       Alexander is the oldest of three brothers, all of whom lived with their mother in

Newark, New Jersey at the time of Alexander‟s current offense. (A51; PSR ¶ 55).

Alexander is also the father of four children from three different relationships. (PSR ¶¶

61-62). The children range in age from one to four and Alexander is currently in arrears

on court-ordered child support payments for his oldest son. (PSR ¶ 61).

       Alexander‟s father left the family when Alexander was twelve years old.

Alexander claims that because of the pressure he placed upon himself to contribute

financially towards his struggling family, he made some poor choices which led him to

where he is today. In support of a requested lenient sentence, Alexander claimed “if he




                                             3
had a positive male role model in his life, he would not have began [sic] to „look to the

streets for a father figure‟ and things may have turned out differently.” (A51; PSR ¶ 58).

        It was Alexander‟s belief that by pleading guilty to the instant offense, he could

“end his pattern of bad choices and contacts with the criminal justice system.” (A52).

Therefore, he asked the sentencing court to impose a sentence below the recommended

guideline range of 70 to 87 months,1 and requested that any sentence imposed be ordered

to run concurrently with the state sentence he was serving at the time. (A55).

        After considering all of the information before it, the sentencing court ultimately

imposed a 78-month term of imprisonment, and ordered that it run consecutively to

Alexander‟s imprisonment on any previous state or federal sentence. (A69). The court

also imposed a three-year term of supervised release and a one hundred dollar ($100.00)

special assessment fee, while waiving any potential fine. (A69).

        The within appeal followed.

                                              II

        The issue presented for this Court‟s consideration is twofold. First, Alexander

questions whether imposition of a 78-month sentence was “overly punitive.” Second, he

asks us to assess whether the decision to run that sentence consecutively to a sentence

currently being served, was “overly severe” and “even more unreasonable.” (Appellant

Br. 2). As such, Alexander is not challenging the procedural aspect of his sentence; only

the substantive reasonableness. (Appellant Br. 11).

        In conducting our assessment, we are mindful that . . .

1
    Alexander sought a sentence of 60 months.

                                              4
              In addition to being procedurally reasonable, a sentence must also be
              substantively reasonable. For a sentence to be substantively reasonable, a
              district court must apply the § 3553(a) factors reasonably to the
              circumstances of the case. A sentence that falls within the recommended
              Guidelines range, while not presumptively reasonable, is less likely to be
              unreasonable than a sentence outside the range. The pertinent inquiry is
              “whether the final sentence, wherever it may lie within the permissible
              statutory range, was premised upon appropriate and judicious consideration
              of the relevant factors.” The party challenging the sentence bears the
              ultimate burden of proving its unreasonableness, and we accord great
              deference to a district court‟s choice of final sentence.

United States v. Lessner, 498 F.3d 185, 204 (3d Cir. 2007) (citations omitted).

       This analysis shall be conducted by utilizing an abuse-of-discretion standard. Gall

v. United States, 552 U.S. 38, 51 (2007).

       At the time of sentencing, Alexander did not seek a downward departure from the

sentencing guidelines. (A61). However, he did seek a variance based upon “personal

circumstances.” (A61-62). The crux of Alexander‟s argument to the sentencing court

was that an exception should be made for him because he was an extraordinary athlete

but “things just sort of fell apart for him.” (A62). Alexander‟s counsel argued that his

client felt the pressure of negative influences and wandered down the wrong path in an

effort to help his mother and siblings, but that he was ready to change and had the support

of his family to do so. (A63). Counsel also referenced Alexander‟s “young” age of

twenty-three, and the fact that although he had “amassed a considerable number of

[criminal history] points in a short period of time,” it was all just the result of “acting

foolish and making poor choices” involving weapons and drugs. (A63-64). Accordingly,

Alexander sought a 10-month variance from the lower end of the 70 to 87-month




                                               5
guideline recommendation, and requested that the sentence be served concurrently with a

four-year sentence he was already serving on a state-imposed sentence. (A64, 66).

       In response to Alexander‟s request, the government emphasized the seriousness of

the offense for which he stood convicted, and Alexander‟s criminal history, which

includes three felony convictions, with probation violations for each. (A67).

       Upon careful consideration of these arguments - and after having determined the

applicable guidelines range and confirming the non-existence of any motion for departure

- the court set forth its consideration of all relevant “3553(a)” factors.2 Exercising the

discretion afforded to him, Judge Cavanaugh ultimately sentenced Alexander to a 78-

month term of imprisonment.

       Alexander contends that despite his presentation of mitigating factors, the District

Court “strictly adhered” to the guidelines and imposed an unreasonable sentence.

(Appellant Br. 10). This contention is not borne out by the record, when viewed in toto.

Moreover, we have held that a sentencing court‟s “failure to give mitigating factors the

weight a defendant contends they deserve” does not necessarily “render[ ] the sentence

unreasonable.” United States v. Bungar, 478 F.3d 540, 546 (3d Cir. 2007).

Circumstances regarding upbringing, addiction, and parental status, do not necessarily

2
  These factors include consideration of: the nature and circumstances of the offense; the
history and characteristics of the defendant; the need for the sentence to: reflect the
seriousness of the offense, promote respect for the law, provide just punishment for the
offense, afford adequate deterrence, protect the public from further crimes of the
defendant, and provide the defendant with the educational or vocational training and
medical care he needs; the kinds of sentences available, the sentencing ranges established
by the guidelines; pertinent policy statements by the Sentencing Commission; the need to
avoid sentencing disparities; and, the need to provide a victim with restitution. 18 U.S.C.
§ 3553(a).

                                              6
“suggest[ ] that [a defendant‟s] position is so unique that it makes the district court‟s

refusal to vary his sentence downward „illogical, implausible, or without support in

inferences that may be drawn from the facts in the record.‟” United States v. Treadwell,

593 F.3d 990, 1011 (9th Cir. 2010) (quoting United States v. Hinkson, 585 F.3d 1247,

1263 (9th Cir. 2009)), cert. denied, 131 S. Ct. 488 (2010).

       The sentence imposed upon Alexander was within the lower half of the

recommended guidelines range and cannot be deemed “overly punitive,” as he so states.

Alexander is essentially asking us to re-weigh the evidence presented to the District

Court, but our duty is not to second guess. United States v. Levinson, 543 F.3d 190, 196

(3d Cir. 2008).

       In assessing post-Booker3 sentencings, we have determined that:

              A sentence that falls within the guidelines range is more likely to be
              reasonable than one outside the guidelines range. There are no magic
              words that a district judge must invoke when sentencing, but the record
              should demonstrate that the court considered the § 3553(a) factors and any
              sentencing grounds properly raised by the parties which have recognized
              legal merit and factual support in the record.

United States v. Cooper, 437 F.3d 324, 332 (3d Cir. 2006).

       Further, “if the district court‟s sentence is procedurally sound, we will affirm it

unless no reasonable sentencing court would have imposed the same sentence on that

particular defendant for the reasons the district court provided.” United States v. Tomko,

562 F.3d 558, 568 (3d Cir. 2009) (en banc).



3
 United States v. Booker, 543 U.S. 220 (2005) (holding that the sentencing guidelines are
advisory).

                                              7
       The record before us supports the sentence imposed, as the sentencing judge

unambiguously stated that he read defense counsel‟s “very fine memo” and considered all

of the facts presented to him by both sides, including Alexander‟s “history and

characteristics.” (A62, 66, 68).4 See Cooper, 437 F.3d at 329 (“The court need not

discuss every argument made by a litigant if an argument is clearly without merit. Nor

must a court discuss and make findings as to each of the § 3553(a) factors if the record

makes clear the court took the factors into account in sentencing.”) (citations omitted).

Having obviously considered the factors in this case, the court was within its discretion to

impose a sentence that not only took into account Alexander‟s family history and

upbringing (as presented by the defense), but also addressed other important factors, such

as: Alexander‟s “very poor prior [criminal] record”; the fact that “gun use is rampant”

and the public needed to be protected; the fact that this particular offense was “very

serious”; the need for adequate deterrence; and the fact that Alexander had already

squandered opportunities for rehabilitation from prior convictions.5,6 (A68).

Accordingly, it is evident that “particular circumstances of the case have been given

meaningful consideration within the parameters of § 3553(a).” Levinson, 543 F.3d at

4
  As such, Alexander‟s statement that “[t]he district court failed to adequately review the
specifics of that [criminal] record” is unfounded. (Appellant Br. 16).
5
   Alexander‟s reliance on United States v. Olhovsky, 562 F. 3d 530, 552 (3d Cir. 2009)
for the proposition that “a court‟s distaste for a particular offense cannot drive a
sentence,” is misplaced. The nature of the sentencing court‟s statements herein is wholly
distinguishable from those at issue in Olhovsky. Further, the record clearly demonstrates
that the sentencing court‟s concern regarding rampant gun use was not the sole reason for
the sentence imposed in this case.
6
  Alexander‟s statement that “[h]aving already served a significant period in jail by the
time he was sentenced, it follows that the punitive and deterrent aspects of sentencing
were already taking effect” is belied by his own past record. (Appellant Br. 17).

                                             8
195. Moreover, nothing in the record indicates that the sentencing judge refused to vary

from the low end of the guidelines range for an improper reason. United States v. Rome,

384 F. App‟x 135, 141 (3d Cir. 2010) (non-precedential) (noting that absent any support

from the record, an appellant‟s mere argument that a sentence is “overly punitive” does

not demonstrate an abuse of discretion).7 See also Cooper. 437 F.2d at 331 (“[I]t is less

likely that a within-guidelines sentence, as opposed to an outside-guidelines sentence,

will be unreasonable. The advisory guidelines range is itself one of the § 3553(a) factors,

18 U.S.C. § 3553(a)(4), and continues to play an integral part in sentencing decisions.”).

         Accordingly, Alexander‟s argument that the court‟s imposition of a 78-month term

of imprisonment was “overly punitive and therefore substantively unreasonable,” is

without merit.

         This Court now turns to the merits of Alexander‟s argument that the sentencing

court improperly imposed a consecutive sentence. The same is unfounded.8 At the time

of the instant offense, Alexander was serving a state sentence, therefore the following

statutory provision applies:

                If a term of imprisonment is imposed on a defendant who is already subject
                to an undischarged term of imprisonment, the terms may run concurrently

7
  Similar to the instant case, the sentencing court in Rome was faced with the argument
that the recommended sentencing guideline range was “too long for what [Rome saw] as
low-level drug offenses.” Id. at 141. However, we found that the sentencing judge‟s
“concern about Rome‟s relative youth, his repeat offenses, his continued failure to
comply with the conditions of his supervised release, and the break he got from Judge
Bassler on the previous drug violation,” as well as her consideration of general deterrence
and “the message that [she] send[s] to the community,” all suggested that she was not
sentencing Rome within the recommended range for improper reasons. Id.
8
    Notably, Alexander provides no legal authority for this argument.

                                              9
              or consecutively, except that the terms may not run consecutively for an
              attempt and for another offense that was the sole objective of the attempt.

18 U.S.C. § 3584(a).

       Additionally, “[t]he court, in determining whether the terms imposed are to be

ordered to run concurrently or consecutively, shall consider, as to each offense for which

a term of imprisonment is being imposed, the factors set forth in section 3553(a).” 18

U.S.C. § 3584(b).

       The guidelines mirror this precept, providing that under circumstances such as

those involved herein, “the sentence for the instant offense may be imposed to run

concurrently, partially concurrently, or consecutively to the prior undischarged term of

imprisonment to achieve a reasonable punishment for the instant offense.” U.S.S.G. §

5G1.3(c).

       The sentencing court in this case found in pertinent part that Alexander “has[,] on

a number of occasions[,] been placed on probation, and he hasn‟t done well with it. He‟s

been in trouble on numerous occasions, and apparently, even though he‟s been punished

on some of those occasions, he hasn‟t learned from any of that.” (A68). Undoubtedly,

the court was deeply dissatisfied with Alexander‟s increasingly apparent tendency

towards recidivism and when the decision was made to impose a consecutive sentence,

“[n]othing in the language of [section 5G1.3(c)] or its Commentary require[d] [the]

district court[ ] to make specific findings with respect to any or all of the factors listed in

the Commentary or [18 U.S.C.] § 3553(a).” United States v. Saintville, 218 F.3d 246,

249 (3d Cir. 2000) (quoting United States v. Velasquez, 136 F.3d 921, 924 (2d Cir.



                                              10
1998)). Mindful that “the trial court [is] in the best position to determine the appropriate

sentence in light of the particular circumstances of the case,” we find no abuse of

discretion. Cooper, 437 F.3d at 330.

                                             III

       In view of the foregoing, we affirm the District Court‟s judgment of sentence.




                                             11
