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


11-21-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5487




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 05-5487
                                     ___________

                           UNITED STATES OF AMERICA

                                           vs.

                                 ANDREW HLAVAC,

                                          Appellant
                                     ___________

                    On Appeal from the United States District Court
                         for the Western District of Pennsylvania
                             (D.C. Criminal No. 05-cr-00200)
                  District Judge: The Honorable Thomas M. Hardiman
                                      ___________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  October 27, 2006

              BEFORE: SMITH, WEIS, and NYGAARD, Circuit Judges.

                              (Filed: November 21, 2006)
                                      ___________

                              OPINION OF THE COURT
                                   ___________

NYGAARD, Circuit Judge.

      Andrew Hlavac appeals his sentence as unreasonable. We have jurisdiction

pursuant to 18 U.S.C. § 3742(a)(1) (authorizing the appeal of sentences "imposed in
violation of law"). See United States v. Cooper, 437 F.3d 324, 327-28 (3d Cir.2006). For

the reasons stated below, we will affirm.

                                              I.

       Hlavac was charged with having sexual relations with a two-year old child, who

had been offered to him by the child’s mother. Hlavac pleaded guilty to inducing a minor

to engage in illegal sexual activity (Count I) and to receipt of material depicting the

sexual exploitation of a minor (Count II); violations of 18 U.S.C. § 2422(b) and 18 U.S.C.

§ 2252 (a)(2).

       A pre-sentence investigation placed Hlavac’s offense level at 31 and his criminal

history category as a 1. The statutory incarceration penalties for the first count were not

less than five years nor more than thirty years. A prison sentence of not less than five

years nor more than twenty years was prescribed for the second count. The District Court

sentenced Hlavac to 240 months’ imprisonment on Count I and a concurrent sentence of

135 months imprisonment on Count II. This sentence was in excess of that calculated in

the presentence investigation report.

                                             II.

       Our inquiry into the reasonableness of a criminal sentence proceeds in two parts.

See United States v. Cooper, 437 F.3d 324, 329-32 (3d Cir.2006). First, we are to

determine whether the sentencing court gave "meaningful consideration" to the factors

enumerated in 18 U.S.C. § 3553(a). Id. at 329 (citation omitted). Although it is not

necessary for the sentencing court to "make findings as to each of the § 3553 factors if the

                                              2
record makes clear the court took the factors into account in sentencing," a mere "rote

statement" of the sentencing factors is insufficient in the event that a party has presented

the court with a “‘ground of recognized legal merit (provided it has a factual basis).’” Id.

(quoting United States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005)).

       The second step of our inquiry is to determine whether the sentencing court,

having considered the relevant factors, reasonably applied them to the circumstances of

the case. Id. at 330. We are to show great deference to the sentencing court. See id.

(“‘[T]he question is not how we ourselves would have resolved the factors identified as

relevant by section 3553(a) ... Rather, what we must decide is whether the district judge

imposed the sentence he or she did for reasons that are logical and consistent with the

factors set forth in section 3553(a).’”) (quoting United States v. Williams, 425 F.3d 478,

481 (7th Cir.2005)). The party who is challenging the sentence bears the burden of

showing its unreasonableness. Id. at 332.

       The record here reveals that the District Court did give "meaningful consideration"

to the § 3553(a) factors. As is required by § 3553(a)(4), the District Court calculated the

sentencing range established by the guidelines. App. 101-102 (stating that the guidelines

range is 108 to 135 months' incarceration). The District Court then acknowledged that it

was not obligated to impose a sentence within that range. App. 85 (“Under the Court’s

interpretation of Booker, a sentencing judge is required to consider the applicable

Guideline range in determining a sentence, but possesses broad discretion to sentence



                                              3
based on the circumstances of each case, so long as the sentence imposed is within the

statutory range and is reasonable.”).

       The District Court considered and then formally rejected Hlavac's arguments

concerning his psychiatric dysfunction, alcoholism and sexual abuse. App. 104. Here, at

the sentencing hearing the District Court engaged in a lengthy discussion of the 18 U.S.C.

§ 3553(a) sentencing factors. App. at 104-107. Because of the District Court's

thoroughness in reviewing each of the prescribed sentencing factors, we need not recount

that discussion here. Our review of the record satisfies us that the District Court examined

each factor in turn, and appropriately explained how the sentence would address that

factor's purpose. We are satisfied that Hlavac’s sentence was reasonable.

                                            III.

       Hlavac additionally argues that the District Court erred by not granting his request

to continue the sentencing hearing once the District Court informed counsel that it was

inclined to depart upward from the Sentencing Guideline’s range. Federal Rule of

Criminal Procedure 32(h) was created in response to the Supreme Court's decision in

Burns v. United States, 501 U.S. 129 (1991), where the Court held that an earlier version

of Rule 32 required district courts to give defendants advance notice before departing

upward, sua sponte, from Guidelines sentences. See United States v. Vampire Nation, 451

F.3d 189, 195-96 (3d Cir. 2006). As we have explained, Rule 32(h) was adopted when

the Guidelines were mandatory. Vampire Nation, 451 F.3d at 196. However, the

Supreme Court made clear in Booker that the Guidelines are now advisory. Post-Booker,

                                             4
district courts exercise broad discretion in imposing sentences, so long as they begin with

a properly calculated Guidelines range, fully consider the broad range of factors set forth

in 18 U.S.C. § 3553(a), and all grounds properly advanced by the parties at sentencing.

See Cooper, 437 F.3d at 329-30.

       Thus, district courts continue to consider all grounds properly advanced by the

parties at sentencing, as they did in the past. Further, district courts continue to consider

the Guidelines range, which is now advisory. Post-Booker, sentencing is a discretionary

exercise, and now includes a review of the factors set forth in § 3553(a). These factors are

known before sentencing. Because defendants are fully aware that district courts will

consider the factors set forth in § 3553(a), there is no element of “unfair surprise.” See

United States v. Walker, 447 F.3d 999, 1007 (7th Cir. 2006) (observing that “defendants

are on notice post-Booker that sentencing courts have discretion to consider any of the

factors specified in § 3553(a)”). Thus, “[n]ow that Booker has rendered the Guidelines

advisory, the concerns that animated the Court's decision in Burns no longer apply.”

Walker, 447 F.3d at 1006. Given that defendants are aware that courts will consider the

broad range of factors set forth in § 3553(a) at sentencing, we perceive none of the

“unfair surprise” considerations that motivated the enactment of Rule 32(h).

                                             IV.

       Having concluded that the District Court did properly exercise its discretion, we

further conclude that the sentence was imposed “‘for reasons that are logical and



                                              5
consistent with the factors set forth in section 3553(a).’” Cooper, 437 F.3d at 330

(quoting Williams, 425 F.3d at 481).




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