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


12-15-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1912




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NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                   Case No: 05-1912

                           UNITED STATES OF AMERICA

                                            v.

                                JERMAINE BURTON
                                      a/k/a
                                 KEITH DIAMOND
                                      a/k/a
                                MICHAEL DIAMOND


                                     Jermaine Burton,

                                                 Appellant


                    On Appeal from the United States District Court
                                for District of New Jersey
                              District Court No. 04-CR-182
                    District Judge: The Honorable William H. Walls


                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 December 13, 2006

                      Before: SMITH and ROTH, Circuit Judges,
                              and YOHN, District Judge*

                              (Filed: December 15, 2006)



      *
        The Honorable William H. Yohn, Jr., Senior District Judge for the Eastern
District of Pennsylvania, sitting by designation.

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                                         OPINION


SMITH, Circuit Judge.

       On October 21, 2004, a jury found Jermaine Burton guilty of conspiring to defraud

the United States in violation of 18 U.S.C. § 371. United States District Judge William

Walls sentenced Burton after the Supreme Court issued its decision in United States v.

Booker, 543 U.S. 220 (2005), to 60 months’ imprisonment and three years of supervised

release. This timely appeal followed.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise

appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). See United States

v. Cooper, 437 F.3d 324, 327-28 (3d Cir. 2006).

       Burton contends that his sentence should be vacated and that this matter should be

remanded for resentencing because the District Court failed to follow the proper

procedures at resentencing. He asserts that the Court did not make a determination as to

the appropriate guideline range. In addition, Burton contends that in imposing sentence

the District Court failed to consider the various factors set out in 18 U.S.C. § 3553(a). In

Burton’s view, the Court “simply” sentenced him to the maximum period of sixty months.

       In United States v. Gunter, 462 F.3d 237 (3d Cir. 2006), we instructed that post-

Booker “district courts must follow a three step sentencing process.” Id. at 247. The first

step requires calculating the applicable guideline range. Second, the district court must

formally rule on any motions of the parties and requests for departure. In the final step,


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the district court must “exercise [its] discretion by considering the relevant § 3553(a)

factors in setting the sentence they impose regardless whether it varies from the sentence

calculated under the Guidelines.” Id. (quoting Cooper, 437 F.3d at 329) (internal

quotation marks and ellipses omitted). Here, Burton takes issue with steps two and three.

       We find no error by the District Court at step two in the sentencing process which

would warrant vacating his sentence and remanding for resentencing. The District Court

did not, as Burton points out, finish its computation of the guideline range as it failed to

rule on the government’s request for enhancements on the basis of Burton’s role in the

offense and an obstruction of justice. It explained, however, that Burton’s guideline

range, even without these enhancements, already exceeded the statutory maximum of

sixty months. Because Burton could not be sentenced to more than sixty months, the

District Court did not commit reversible error by abbreviating the process and correctly

declaring that the guideline range was sixty months, consistent with the statutory

maximum.

       Nor do we find any merit to Burton’s assertion that the District Court erred at step

three in the sentencing process by sentencing Burton to the maximum of sixty months.

The Court specifically noted Burton’s age, his above average intelligence, and his ability

to pull off the fraudulent scheme that resulted in a loss, as found by the jury, of $1.8

million. The Court further noted Burton’s criminal history, as well as his ability to con

people. Based on reasoned consideration of these factors, the District Court declared that

this offense deserved jail time. In fact, the Court found that this offense was egregious

                                              3
and it expressed its hope that the punishment would make Burton realize, consistent with

his remarks during his allocution, that he had erred and neglected his family. The District

Court’s comments clearly demonstrate consideration of the need to protect the public, to

impose adequate deterrence, and to reflect the seriousness of the crime. Because the

District Court gave “meaningful consideration to the § 3553(a) factors” as required by

Cooper, 437 F.3d at 329, we will affirm the judgment of the District Court.




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