                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-13-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4219




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 06-4219
                                    ____________

                          UNITED STATES OF AMERICA

                                           v.

                                 JOHN GREEN, JR.,

                                          Appellant
                                    ____________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                               (D.C. No. 06-cr-00016E)
                    District Judge: Honorable Sean J. McLaughlin
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                    June 2, 2008

      Before: FISHER and JORDAN, Circuit Judges, and YOHN,* District Judge.

                                 (Filed:June 13, 2008)
                                    ____________

                             OPINION OF THE COURT
                                  ____________




      *
        The Honorable William H. Yohn, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
FISHER, Circuit Judge.

       This appeal arises out of the sentence imposed on John Green, Jr. following his

guilty plea to one count of bank robbery. For the reasons that follow, we will affirm the

District Court’s judgment of sentence.

                                              I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       On March 13, 2006, John Green, Jr. entered the National City Bank at 1727 State

Street in Erie, Pennsylvania and handed a bank teller a note that read, “Robbery, put

money in the bag.” The teller complied with Green’s demand and put $4,410 into his

bag.

       The following day, a confidential informant tipped off Erie police that Green was

the bank robber and that he was driving a Cadillac. Acting on this information, police

stopped Green while driving a Cadillac, along with his girlfriend, Cindy Foreman, and

detained the couple for questioning.

       During questioning, Foreman indicated to authorities that Green was the bank

robber they sought. Green was then arrested, and he subsequently admitted to the

robbery. Green was charged with one count of bank robbery in violation of 18 U.S.C.

§ 2113(a), and on June 12, 2006, he pleaded guilty to that charge.



                                              2
       At the sentencing hearing on September 19, 2006, the District Court, in accordance

with the Presentence Report, assigned Green an offense level of 29. Because of a 1998

aggravated assault conviction and two simple assault convictions (one in 1997 and one in

2006), Green was considered a career offender under Chapter Four of the Sentencing

Guidelines. Combined with a criminal history category of VI, the Guidelines thus

prescribed an advisory sentencing range of 151 to 188 months’ imprisonment.

       Green disputed his designation as a career offender and moved for a downward

departure, arguing that the designation over-represented the seriousness of his past crimes

and the likelihood that he would commit future ones. Green also argued for a downward

variance under 18 U.S.C. § 3553(a). The District Court ultimately sentenced Green to a

term of 165 months’ imprisonment and three years’ supervised release. Green’s timely

appeal followed.

                                            II.

       We exercise jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742. Our standard of review is abuse of discretion. See Gall v. United States,

128 S. Ct. 586, 597 (2007). Under this standard, we “must first ensure that the district

court committed no significant procedural error” and “then consider the substantive

reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id.




                                             3
                                             III.

                                             A.

       Green first argues that the District Court committed procedural error in applying

the Guidelines’ Chapter Four career offender enhancement to him. This argument is

meritless. In United States v. Dorsey, 174 F.3d 331 (3d Cir. 1999), we held that

“[b]ecause all three parts of Pennsylvania’s definition of simple assault necessarily

involve conduct that presents a serious potential risk of physical injury, a conviction

under the statute is one for a crime of violence.” Id. at 333 (internal quotation marks

omitted). Prior to the instant offense, Green had been convicted in Pennsylvania for

aggravated assault and twice for simple assault. Accordingly, Green “has at least two

prior felony convictions of . . . a crime of violence.” U.S.S.G. § 4B1.1(a)(3).1 Therefore,

the District Court did not err procedurally in sentencing Green as a career offender.

       Nor did the District Court err in not granting a downward departure to “dilute” the

career offender designation under U.S.S.G. § 4A1.3(b), which may apply where “the

defendant’s criminal history category substantially over-represents the seriousness of the

defendant’s criminal history or the likelihood that the defendant will commit other

crimes.” Id. § 4A1.3(b)(1). In describing Green’s criminal past, the District Court stated:




       1
       Also, our decision in United States v. Otero, 502 F.3d 331 (3d Cir. 2007), has no
impact on this case because Otero interpreted “crime of violence” under U.S.S.G.
§ 2L1.2, not § 4B1.2. See United States v. Teague, 469 F.3d 205, 209 n.7 (1st Cir. 2006).
Here, we must follow Dorsey, which is the decision directly on point.

                                              4
       “In [the 1998] case while attempting to steal cigarettes from a store, the
       defendant punched one of the employees several times in the head and then
       stabbed him in the arm with a pair of scissors. He also stabbed another
       employee with the scissors, and then bit that employee on the leg. . . .
       Simple assault in November of 2005. That involved punching his girlfriend
       in the eye and forehead causing swelling and redness, which, according to
       the report, required medical attention. . . .
               [It] bespeaks to me a long and continuous history of significant
       criminal behavior. And far from being over-representative, career offender
       status, in my view, is entirely appropriate given this defendant’s
       background. And as I said before, the simple assault conviction in 2006
       and the 1998 aggravated assault, are not the only crimes of violence . . . .
       As I said, he was also convicted of simple assault in 1997 in connection
       with the security guard.”

We find no error with these findings and conclusions precluding any downward departure

for over-representation of Green’s criminal history.

                                              B.

       Green next argues that the District Court committed procedural error by failing to

provide an adequate statement of reasons for the sentence imposed. Under 18 U.S.C.

§ 3553(c), “[t]he court, at the time of sentencing, shall state in open court the reasons for

its imposition of the particular sentence . . . .” At the same time, the thoroughness of that

statement is generally at the sentencing court’s discretion. See Rita v. United States, 127

S. Ct. 2456, 2468 (2007) (“[W]e cannot read the statute (or our precedent) as insisting

upon a full opinion in every case. The appropriateness of brevity or length, conciseness

or detail, when to write, what to say, depends upon circumstances. . . . The law leaves

much, in this respect, to the judge’s own professional judgment.”); United States v.

Dragon, 471 F.3d 501, 505-06 (3d Cir. 2006) (“Courts need only state adequate reasons

                                              5
for a sentence on the record so that [we] can engage in meaningful appellate review.”

(internal quotation marks omitted)).

       In this case, the District Court provided an adequate statement of reasons to

support Green’s sentence. Indeed, the District Court did so at some length:

       “I have considered all [of the § 3553(a)] factors in fashioning what I think
       is an appropriate sentence here today.
               First, the offense of bank robbery is, of course, a very serious offense
       and it is frequently very traumatizing for the bank employees who are there
       at the time. As discussed earlier in connection with, relative to the
       background of this defendant, he has been engaged in criminal activity and
       on occasion violent criminal activity most of his life. The protection of the
       public is in this case, in my view, of paramount importance. And that is in
       part based upon this defendant’s previous background and, quite frankly,
       the likelihood that he would engage in further criminal activity. Deterrence
       and respect for the law are significant considerations in this case. In short,
       the message here is simple, if you rob a bank, you will be caught and the
       penalty will be severe.”

We have affirmed as adequate far less detailed explanations of a sentence for purposes of

§ 3553(c), and we will do so here.2

                                              C.

       Lastly, Green argues that his sentence was substantively unreasonable. His first

basis for this contention is that the time he actually served for prior state offenses was

much less than the statutory maximum for those offenses. Under his theory, a sudden and




       2
        We confine to the margin our discussion of Green’s argument that the District
Court gave presumptive weight to the Guidelines. The record is abundantly clear that the
Court did no such thing, as it properly treated the Guidelines as advisory, per United
States v. Booker, 543 U.S. 220 (2005), and appropriately considered the § 3553(a) factors.

                                              6
dramatic increase in the prison term in the federal system is more than necessary (and

therefore unreasonable) to deter him from committing future offenses. But it is at least as

sensible (and therefore reasonable) for the District Court to conclude that the relative

harshness of a federal sentence, in light of previous and repeated mere slaps on the wrist

for what state statutes deem very serious offenses, is the best way to satisfy the sentencing

objectives of § 3553(a).

       The second basis for Green’s contention that his sentence is unreasonable is that

the District Court should have considered as material the fact that simple assault in

Pennsylvania is considered a felony crime of violence under the Guidelines, whereas it is

not so considered in a majority of the other states. Under his theory, Dorsey’s treatment

of simple assault in Pennsylvania as a crime of violence creates an unwarranted

sentencing disparity under § 3553(a)(6). We need not decide today for all cases whether

disparity in sentencing stemming from differential grading of offenses by different state

statutes constitutes an “unwarranted disparity” under § 3553(a)(6).

       We nonetheless believe that the District Court’s individualized explanation in this

case under § 3553(a) of the violent and repeated nature of Green’s past offenses is logical

and consistent with its judgment against leniency via downward variance. See United

States v. Vargas, 477 F.3d 94, 100 (3d Cir. 2007) (“This Court, in United States v.

Charles, 467 F.3d 828, 833 n.7 (3d Cir. 2006), placed the burden on the defendant to

demonstrate similarity by showing that other defendants’ ‘circumstances exactly



                                              7
paralleled’ his. There has been no such showing here, and a court should not consider

sentences imposed on defendants in other cases [let alone in other states] in the absence

of such a showing by a party.”). In other words, notwithstanding any difference between

how Pennsylvania treats simple assault versus other states, the District Court reasonably

weighed more heavily the facts surrounding the instances of assault (as well as attempted

drug abuse, retail theft, and false identification) in Green’s criminal past. See Charles,

467 F.3d at 833 (§ 3553(a)(6) “is just one factor (if relevant) that should be balanced

against the others (again, if relevant)”). The District Court’s undisputed factual findings,

which are relevant to several of the § 3553(a) factors, logically and consistently justify the

District Court’s imposition of a within-Guidelines sentence here. Therefore, the District

Court did not abuse its discretion, and it imposed a reasonable sentence.

                                             IV.

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




                                              8
