                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-13-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1791




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"USA v. Foster" (2004). 2004 Decisions. Paper 845.
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                                                                    NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 03-1791


                            UNITED STATES OF AMERICA

                                             v.

                                   COLIN D. FOSTER,

                                                        Appellant




                       Appeal from the United States District Court
                         for the Western District of Pennsylvania
                        (D.C. Criminal Action No. 00-cr-00136-3)
                         District Judge: Honorable Alan N. Bloch


                       Submitted Under Third Circuit LAR 34.1(a)
                                   March 23, 2004


               Before: ROTH, AMBRO, and CHERTOFF, Circuit Judges

                              (Opinion filed April 13, 2004)




                                        OPINION


AM BRO, Circuit Judge

       Colin D. Foster appeals the District Court’s sentencing order following the

revocation of his supervised release. Foster argues that the District Court abused its
discretion when it sentenced Foster to three years in prison, in excess of the sentencing

range provided in the United States Sentencing Guidelines (“Guidelines”). We disagree,

and thus affirm the District Court’s order.

                                               I.

         In January 2001, Foster pled guilty to (1) conspiracy to distribute and possess with

intent to distribute more than 100 kilograms of marijuana and (2) conspiracy to launder

monetary instruments. He was sentenced to 18 months imprisonment and a five year term

of supervised release.

         In February 2003, the United States Probation Office filed a petition seeking to

revoke Foster’s supervised release. The next month, the United States District Court for

the Western District of Pennsylvania held a hearing on the petition. At the hearing, Foster

admitted that he possessed and used cocaine in violation of his supervised release

conditions. The District Court also found that Foster committed simple assault and

harassment in violation of Pennsylvania law.

         The District Court revoked Foster’s supervised release and sentenced him to the

statutory maximum period–three years in prison. Foster appeals.1

                                               II.

         Foster argues that the District Court abused its discretion2 in imposing a three year


  1
      We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
  2
    Per United States v. Schwegel, 126 F.3d 551, 555 (3d Cir. 1997), this is the correct
standard of review for a district court’s decision to exceed the Guidelines’ sentencing

                                               2
sentence in excess of the Guidelines sentencing range because, under the relevant state

law, he would not be sentenced to more than 26 months in prison for the crimes of simple

assault and harassment if prosecuted in the state court.3 We disagree.

       Under U.S.S.G. § 7B1.4, the range of Foster’s prison term was 12 to 18 months.

Foster was sentenced to three years in excess of this range. However, we previously held

that the range in the Guidelines is “merely advisory.” Schwegel, 126 F.3d at 553. As

long as the sentencing court considers this range in its evaluating process, the sentence is

not reversible solely because it exceeded the range. Id. In this case, the District Court

considered the recommended sentence under the Guidelines but determined that the

longer sentence was necessary to address adequately the seriousness of Foster’s

continuing violation of the law after receiving a lenient sentence for his initial conviction.

       Morever, nothing in the Guidelines requires the sentencing court to consider the

possible state sentence that the defendant would receive in the state court for the conduct

which is simultaneously in violation of his supervised release terms. Furthermore, in this

case, the District Court’s decision to impose a three year term was not solely based on



range for violation of a supervised release condition.
  3
    Foster also emphasizes that the victim (Foster’s wife) does not want prosecution and
that she lied to the police when she reported the incident that resulted in assault and
harassment charges. We note that whether Foster’s wife wants him prosecuted is
irrelevant to the determination of whether he violated his supervised release conditions.
Moreover, during the hearing, Foster’s wife confirmed that Foster had broken her wrist
and bruised her eye by pushing her, though she denied her earlier testimony to the police
that they were arguing about Foster’s use of drugs when the incident occurred.

                                              3
Foster’s simple assault and harassment charges. He violated the conditions of his

supervised release by possessing and using cocaine as well as by committing assault and

harassment. Therefore, we conclude that the District Court did not abuse its discretion by

imposing a term of imprisonment exceeding the possible state sentence Foster would

receive.

                                    * * * * * *

       We affirm the District Court’s order sentencing Foster to three years in prison

upon revoking his supervised release.




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