                                                 NOT PRECEDENTIAL


            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT

                         _____________

                          No. 12-3963
                         _____________


                UNITED STATES OF AMERICA

                                v.

                  JAMES EDWARD PENDER,
                     AKA, Jabbar Pender

                                James Edward Pender,

                                                 Appellant



          On Appeal from the United States District Court
                   for the District of New Jersey
               (District Court No.: 2-11-cr-00447)
           District Judge: Honorable William H. Walls


            Submitted under Third Circuit LAR 34.1(a)
                     on September 12, 2013


                   (Filed: September 27, 2013)


BEFORE: RENDELL, JORDAN, and GREENAWAY, JR., Circuit Judges
                                      OPINION


RENDELL, Circuit Judge:

       On June 5, 2012, Appellant James Edward Pender1 pleaded guilty to one count of

conspiracy to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(A) and 21 U.S.C. § 846. The District Court sentenced Pender to 292 months’

imprisonment on October 2, 2012. Pender challenges that sentence. For the reasons

discussed below, we will affirm the sentence imposed by the District Court.

                                     I. Background

       On June 23, 2011, Pender was charged with conspiracy to distribute and

possession with intent to distribute more than one kilogram of heroin. Pender executed a

written plea agreement in which he agreed to plead guilty to one count of the indictment.

The District Court accepted the guilty plea on June 5, 2012.

       In preparation for sentencing, the United States Probation Office prepared a final

Presentence Investigation Report (“PSR”). The PSR calculated Pender’s total offense

level as 35:

            A base offense level of 34 because the offense involved at least 3
             kilograms, but fewer than 10 kilograms, of heroin, pursuant to U.S.S.G.
             § 2D1.1(c)(3);




1
 Pender had his name legally changed to “Jabbar Pender.” The District Court filed an
amended judgment of conviction on December 15, 2012, reflecting Pender’s legal name.
                                            2
           A four-level adjustment because Pender was an organizer or leader of a
            criminal activity that involved five or more participants, pursuant to
            U.S.S.G. § 3B1.1(a); and

           A three-level reduction for acceptance of responsibility, pursuant to
            U.S.S.G. § 3E1.1.

The PSR classified Pender as a “career offender” pursuant to U.S.S.G. § 4B1.1 based on

two predicate violent felonies. The PSR described how Pender participated as the

getaway driver in an armed bank robbery in 1993. After the armed robbery took place in

New York, Pender and his cohorts participated in a 30-mile car chase and shootout with

police that ended in New Jersey.

       As a result of his participation in the 1993 bank robbery, Pender was sentenced on

April 15, 1994, in the Southern District of New York, to a term of 111 months’

imprisonment and a 5-year term of supervised release for bank robbery, armed bank

robbery, conspiracy to commit armed bank robbery, and use of a firearm during a crime

of violence. Then, on March 30, 1995, Pender was sentenced in the State of New York

for criminal possession of a weapon for his participation in the car chase and shootout in

New York. Finally, on July 24, 1996, Pender was sentenced in the State of New Jersey

for aggravated assault, aggravated assault with a weapon, possession of a weapon, and

eluding, for his participation in the car chase and shootout in New Jersey. In calculating

Pender’s criminal history, the PSR counted each of these convictions as separate.

Additionally, the PSR determined that the federal armed bank robbery conviction in the

Southern District of New York and the New Jersey aggravated assault conviction were




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predicate convictions for the career offender enhancement pursuant to U.S.S.G.

§ 4B1.1(b).

       The District Court conducted a sentencing hearing on October 2, 2012, during

which Pender challenged his designation as a career offender, urging the District Court to

treat his convictions as “related” and not “separate,” and argued that low recidivism rates

counseled towards a reduced sentence. Ultimately, the District Court concluded that the

career offender designation was applicable, noting that the bank robbery and subsequent

shootout constituted two separate offenses. The District Court calculated an Offense

Level of 35 and a Criminal History Category of VI, which resulted in a Guidelines range

of 292 to 365 months. The District Court then sentenced Pender to 292 months’

incarceration and five years of supervised release, as well as 6 months’ imprisonment, to

be served concurrently, for his violation of supervised release.

       Pender’s challenge to his sentence is currently before us.

                          II. Jurisdiction and Standard of Review

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

       We review a district court’s sentence for abuse of discretion in two stages. First,

we review for procedural error—for example, failing to correctly compute the Guidelines

range. United States v. Wright, 642 F.3d 148, 152 (3d Cir. 2011). We exercise plenary

review over a district court’s interpretation and application of the Guidelines, although

“we review determinations of fact for clear error, and . . . give due deference to a district



                                              4
court’s application of the Guidelines to the facts.” United States v. Zabielski, 711 F.3d

381, 386 (3d Cir. 2013) (citation and internal quotation marks omitted).

       “If there is no procedural error, the second stage of our review is for substantive

reasonableness, and ‘we will affirm [the sentence] unless no reasonable sentencing court

would have imposed the same sentence on that particular defendant for the reasons the

district court provided.’” Wright, 642 F.3d at 152 (alteration in original) (quoting United

States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009)).

                                       III. Discussion

       Pender raises two issues on appeal: (1) that the District Court committed a

procedural error by improperly characterizing him as a “career offender” for purposes of

the Sentencing Guidelines; and (2) that the District Court’s sentence was substantively

unreasonable.

                                     A. Career Offender

       Pender argues that the District Court erroneously concluded that he was a “career

offender” within the meaning of the Guidelines because his predicate convictions should

have been counted as one conviction, not two. Under the Sentencing Guidelines:

                A defendant is a career offender if (1) the defendant was at
                least eighteen years old at the time the defendant committed
                the instant offense of conviction; (2) the instant offense of
                conviction is a felony that is either a crime of violence or a
                controlled substance offense; and (3) the defendant has at
                least two prior felony convictions of either a crime of
                violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a). To determine whether to treat prior convictions as separate, the

Guidelines state: “If there is no intervening arrest, prior sentences are counted separately

                                              5
unless (A) the sentences resulted from offenses contained in the same charging

instrument; or (B) the sentences were imposed on the same day.”2 U.S.S.G.

§ 4A1.2(a)(2).

       In this case, where there was no intervening arrest, Pender was charged in two

separate indictments and sentenced on two different days. The language of the

Guidelines is unambiguous: § 4A1.2(a)(2) mandates that Pender’s prior convictions be

treated as separate. Pender recognizes as much in his brief. Indeed, he does not dispute

that § 4A1.2(a)(2) applies—rather, he argues that “[i]t is not fair that crossing over an

arbitrary [state] line should have such severe repercussions as Pender has experienced in

this case.” (Appellant’s Br. at 11.) Pender’s approach would ignore the plain language

of the text, however, which we refuse to do. See United States v. Jones, 698 F.3d 1048,

1050-51 (8th Cir. 2012) (refusing to treat “inextricably intertwined” offenses as a single

sentence because they were prosecuted in different jurisdictions and sentenced on

different days).

       Accordingly, we will not disturb the District Court’s determination that Pender is a

career offender.

                                        B. Sentence



2
  This language was added to the Guidelines in 2007 by Amendment 709. Prior to the
amendment, the Guidelines specified that to determine whether a defendant was a career
offender, prior felony convictions were to be counted separately unless they were
“related.” Under that framework, “prior sentences [were] considered related if they
resulted from offenses that (A) occurred on the same occasion, (B) were part of a single
common scheme or plan, or (C) were consolidated for trial or sentencing.” U.S.S.G.
App. C, vol. III, at 236. Amendment 709 removed the concept of “related” cases.
                                              6
       Pender also argues that his 292-month sentence is substantively unreasonable

because it is greater than necessary in light of his low possibility of recidivism. Given

that the District Court’s sentence was 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.” Tomko, 562 F.3d at 568.

“Ultimately, the touchstone of ‘reasonableness’ is whether the record as a whole reflects

rational and meaningful consideration of the factors enumerated in 18 U.S.C.§ 3553(a) . .

. [, which] gives district courts broad latitude in sentencing.” Id. (internal citations and

quotation marks omitted).

       Looking at the record before us, it is clear that the District Court was guided by

the 18 U.S.C. § 3553(a) factors. The District Court considered recidivism among those

factors, although it was “not one of the prime factors.” (App. 32.) The fact that the

District Court treated recidivism as a lesser factor than Pender would have does not make

it an abuse of discretion, however. Moreover, the District Court carefully considered

Pender’s conduct, his attitude, the scope of the criminal enterprise, the particular facts of

the crime, and Pender’s background. Having considered the § 3553(a) factors and

Pender’s arguments, the District Court sentenced Pender to the bottom of the advisory

Guidelines range. Cf. United States v. Cooper, 437 F.3d 324, 332 (3d Cir. 2006) (“A

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

outside the guidelines range.”). Based on the record, we cannot say that “no reasonable

sentencing court would have imposed the same sentence on that particular defendant for



                                              7
the reasons the district court provided.” Tomko, 562 F.3d at 568. Thus, the District

Court did not abuse its discretion in sentencing Pender.

                                     IV. Conclusion

       For the foregoing reasons, we will affirm the sentence of the District Court.




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