                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-29-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3158




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"USA v. Cole" (2007). 2007 Decisions. Paper 176.
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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-3158


                           UNITED STATES OF AMERICA

                                           v.

                                   NORMAN COLE,

                                                      Appellant




                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                       (D.C. Criminal Action No. 04-cr-00635)
                      District Judge: Honorable Paul S. Diamond


                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 9, 2007

        Before: SCIRICA, Chief Judge, AMBRO, and JORDAN, Circuit Judges

                           (Opinion filed November 29, 2007)




                                       OPINION


AMBRO, Circuit Judge

      Norman Cole, having pled guilty to bribery in connection with a program receiving

federal funds, appeals his sentence of 24 months’ imprisonment, three years’ supervised
release, a $100 special assessment, and restitution of $105,307. For the reasons below,

we conclude that the District Court’s sentence was reasonable, and therefore affirm.

       Cole, a master plumber, circumvented the City of Philadelphia’s process for

obtaining a water service permit by secretly purchasing the permits for half price from a

corrupt office clerk, Kathleen Brooks, who in turn pocketed the money rather than

remitting it to the City. Brooks, Cole, and four other plumbers who purchased permits

illegally (Andrew Garappo, Mitchell Gordon, George Manosis, and Russell Brown) were

indicted—some for mail fraud, and some for bribery—and all of them ultimately pleaded

guilty. Brooks, having initially acted as ringleader but also having cooperated with the

Government’s prosecution of the case, received 24 months’ imprisonment, three years’

supervised release, restitution of $332,482, and a special assessment of $100. The four

plumbers (besides Cole) who illegally paid Brooks for permits received probation rather

than imprisonment. On appeal, Cole argues that his sentence was unreasonable because

the District Court failed properly to consider several sentencing factors found in 18

U.S.C. § 3553(a)—factors which would, Cole argues, have weighed in favor of a less

severe sentence.

       Under United States v. Booker, 543 U.S. 220, 261 (2005), we review the District

Court’s sentence for reasonableness. “To determine if the court acted reasonably in

imposing the resulting sentence, we must first be satisfied the court exercised its

discretion by considering the relevant [§ 3553(a)] factors.” United States v. Cooper, 437



                                              2
F.3d 324, 327 (3d Cir. 2006). The factors relevant to this case are “the nature and

circumstances of the offense and the history and characteristics of the defendant,”

§ 3553(a)(1); “the kinds of sentences available,” § 3553(a)(3); and “the need to avoid

unwarranted sentence disparities among defendants with similar records who have been

found guilty of similar conduct,” § 3553(a)(6).

       On appeal, Cole argues that the District Court failed to consider (1) Cole’s age of

60 years, which he alleges should have been considered as part of a consideration of the

“history and circumstances of the defendant” under § 3553(a)(1); (2) alternatives to

incarceration, which he argues should have been considered as part of a consideration of

“the kinds of sentences available” under § 3553(a)(3) and also under § 3553(a)’s

admonition that the court “shall impose a sentence sufficient, but not greater than

necessary, to comply with the purposes” of sentencing; and (3) the disparities between

Cole’s sentence and the average bribery sentence nationwide and in the Eastern District

of Pennsylvania, as well as between Cole’s sentence and those of his co-defendants,

which disparities he argues should have been considered as part of a consideration of “the

need to avoid unwarranted sentence disparities among defendants with similar records

who have been found guilty of similar conduct” under § 3553(a)(6).

       Cole’s argument that the District Court failed to consider § 3553(a)(6)’s disparity

provision fails for two reasons. First, the contention that Cole’s sentence departs from the

average sentence for bribery nationwide and in the Eastern District of Pennsylvania is


                                             3
unpersuasive because he has not explained how the severity of his offense or his other

relevant circumstances are comparable in degree to those of the average bribery defendant

in either jurisdiction, and also because Cole’s sentence falls within the Guidelines range

by which Congress has sought to ensure similar sentences for similarly situated

defendants. Second, Cole’s argument that his sentence unduly departs from that of the

other plumbers in this particular permit-purchasing scheme is similarly unpersuasive. We

have held that “a defendant cannot rely upon § 3553(a)(6) to seek a reduced sentence

designed to lessen disparity between co-defendants’ sentences.” United States v. Parker,

462 F.3d 273, 277 (3d Cir. 2006). Moreover, even if we had not so held, the record

reveals sufficient justification for the disparity in this case. As the Government notes, the

value of Cole’s illegally obtained permits significantly exceeded that of the other four

plumbers’ permits. Similarly, we find sufficient reason for the similarity between Cole’s

and Brooks’s sentences: Brooks, though the ringleader and thus the most culpable

initially, cooperated with the Government’s prosecution of the case.

       Cole’s remaining arguments are also unpersuasive. Because he did not present his

age as a reason for a reduced sentence before the District Court at his sentencing hearing,

we review the age claim for plain error, and we find none. See United States v. Dragon,

471 F.3d 501, 505 (3d Cir. 2006) (applying plain error review for sentencing argument

not raised before district court at sentencing hearing). Moreover, we are not persuaded by

Cole’s argument that the District Court failed to consider alternatives to incarceration.



                                              4
We have held that a district judge is not required to state that the sentence imposed is the

minimum necessary to achieve the purposes of sentencing, id. at 506, and after reviewing

the record we are satisfied that the District Court considered whether a lesser sentence

would have been appropriate.

       Concluding that the District Court’s sentence was reasonable, we affirm.




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