United States v. Anthony Corbin , 325 F. App'x 102 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
4-23-2009
USA v. Anthony Corbin
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1550
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-1550
_____________
UNITED STATES OF AMERICA
v.
ANTHONY CORBIN,
Appellant
_______________
On Appeal from the United States District Court
for the District of New Jersey
(Criminal No. 06-cr-00990)
District Judge: Honorable Anne E. Thompson
______________
Submitted Under Third Circuit LAR 34.1(a)
January 9, 2009
________________
Before: CHAGARES, HARDIMAN Circuit Judges, and ELLIS, Senior District Judge.*
(Opinion Filed: April 23, 2009)
______________
OPINION
______________
ELLIS, Senior District Judge.
*
The Honorable T. S. Ellis, III, Senior District Judge, United States District Court
for the Eastern District of Virginia, sitting by designation.
Anthony Corbin appeals his 50-month sentence for making a threatening
communication in violation of 18 U.S.C. § 875(c), arguing that:
(i) the District Court erred in imposing Corbin’s sentence based on,
inter alia, Corbin’s lack of personal values, immaturity, and poor
attitude towards personal relationships;
(ii) the District Court erred by imposing a longer term of incarceration
based on Corbin’s need for mental health treatment;
(iii) the District Court erred by improperly considering acquitted conduct
as a basis for Corbin’s sentence; and
(iv) Corbin’s 50-month sentence, which was above the advisory
Sentencing Guidelines range of 10 to 16 months, was substantively
unreasonable.
For the reasons stated here, we affirm.
I.
Because we write solely for the benefit of the parties, we only briefly summarize
the essential facts and procedural history.
On December 14, 2006, a grand jury returned a two-count indictment against
Corbin, charging him with (i) a July 9, 2004, bank robbery of a Commerce Bank in Point
Pleasant, New Jersey, in violation of 18 U.S.C. §§ 2113(a) and 2 (“Count One”); and (ii)
making a threatening communication to his ex-girlfriend on November 11, 2006, in
violation of 18 U.S.C. § 875(c) (“Count Two”). Corbin pled not guilty to both counts. The
case proceeded to trial, and on May 9, 2007, a jury acquitted Corbin on Count One and
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convicted him on Count Two.1
During the course of the trial, Corbin testified in his own defense and
acknowledged, inter alia, (i) that during a November 11, 2006, phone conversation with
his ex-girlfriend, who is also the mother of his son, Corbin threatened to kill her and her
family; and (ii) that during a November 18, 2006, phone conversation with the same ex-
girlfriend, he referred to “stolen bank money” he obtained when he had previously
“robbed the banks.” Appellant’s App. (App.) 190–192, 364. With respect to the threat to
kill his ex-girlfriend and her family, Corbin testified that he never intended to follow
through; rather, he claimed that the death threat was an overly emotional reaction to the
former couple’s ongoing dispute regarding the care, custody, and visitation of their son.
With respect to the bank robbery references, Corbin testified that he had never robbed any
banks; rather, he claimed that he used the word “bank” as slang for a narcotics “stash
house” and that he had robbed such stash houses on multiple previous occasions. Id. at
191.
Following the jury’s guilty verdict on Count Two, a presentence investigation
report (PSR) was prepared. The PSR calculated Corbin’s total offense level for the count
of conviction as 12 and his criminal history category as I, resulting in an advisory
1
Although the indictment also charged a co-defendant on Count One, that
defendant was acquitted at trial, and his involvement in the trial is immaterial to this
sentencing appeal.
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Guidelines range of 10 to 16 months.2 On January 8, 2008, Corbin appeared for
sentencing, at which point the government urged the District Court to impose a variant
sentence above the advisory Guidelines range. Specifically, the government argued that a
variant sentence closer to the 60-month statutory maximum was justified by a proper
weighing of the 18 U.S.C. § 3553(a) factors because, inter alia, (i) “the venom, the
hatred, [and] the animosity” of the threatening communication in this case warranted
increased punishment; and (ii) the District Court should consider the acquitted conduct
charged in Count One, which the government argued had been proven by a
preponderance of the evidence, in evaluating Corbin’s history and personal
characteristics. Id. at 309.
Corbin objected to the government’s request, both on the basis that the government
had not provided prior notice of its intention to seek a variant sentence and on the basis
that proper weighing of the § 3553(a) sentencing factors did not justify a variant sentence
in this case. Corbin, by counsel, argued that the District Court should consider various
mitigating factors, including Corbin’s mental health problems and physical abuse he
suffered as a child. After hearing from both parties, the District Court observed that the
advisory Guidelines range appeared “inadequate for punishment for this defendant” and
that it was necessary to “consider how close to the [five-year] maximum this sentence
2
The record reflects some dispute at sentencing regarding whether Corbin should
have received a two-point reduction for acceptance of responsibility. Corbin did not
ultimately receive that reduction, and he has not challenged that ruling on appeal.
Accordingly, we need not address the issue here.
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should be.” Id. at 311–12. In light of those views, the District Court continued the
sentencing and afforded both parties an opportunity to submit written memoranda on the
questions presented by the government’s request for a variant sentence.
The parties complied, and approximately five weeks later, on February 13, 2008,
Corbin reappeared for sentencing. The government again urged imposition of a variant
sentence above the advisory Guidelines range and near the five-year statutory maximum,
arguing, inter alia, (i) that the seriousness of this particular offense—a death
threat—justified increased punishment; (ii) that the acquitted conduct charged in Count
One, which was proven by a preponderance of the evidence at trial, warranted a longer
term of incarceration; and (iii) that Corbin’s history and characteristics—including his
claim when testifying in his own defense that he had robbed drug stash houses on
multiple occasions—suggested that an increased term of imprisonment was necessary to
protect the public. Corbin responded, by counsel, arguing that a variant sentence was not
justified, inter alia, because:
(i) consideration of acquitted conduct would violate his Sixth
Amendment jury trial rights;
(ii) the convicted offense conduct was a result of “extreme frustration
based on the fact that [the ex-girlfriend] was unwilling to let Mr.
Corbin see their child”;
(iii) Corbin never intended to carry out the threat;
(iv) Corbin turned himself in to authorities upon learning of the warrant
issued for his arrest;
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(v) Corbin was depressed in November 2006 as a result of his mother’s
March 2006 passing; and
(vi) Corbin suffered both from childhood physical abuse and from severe
emotional problems.
Id. at 328. In addition, during the course of allocution, Corbin discussed that during his
incarceration pending trial and sentencing, he had sought out counseling, been put on
psychotropic medications, and received treatment for his emotional and mental problems.
The District Court questioned Corbin with respect to whether he provided financial
support to his son, and Corbin acknowledged that although he occasionally provided
some support, his ex-girlfriend was his son’s primary provider.
Following allocution, the District Court imposed a 50-month term of incarceration.
In discussing the basis for the sentence imposed, the District Court first observed that §
3553 requires a sentence that, looking to the seriousness of the offense conduct, both
promotes respect for the law and provides just punishment for the offense. In that respect,
the District Court cited the “intensity” and “serious” nature of Corbin’s threat to kill his
ex-girlfriend and her family as warranting increased punishment. Id. at 336. In addition,
the District Court rejected Corbin’s proffered justification for his actions—that he was
emotionally distraught over not seeing his son—because the District Court found the
explanation was belied both by Corbin’s decisions “not to work[] [and] not to take
responsibility as a father” and by Corbin’s apparent “feel[ing] that he shouldn’t have to
go to the trouble of coming to visit his son.” Id. at 337. The District Court also
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emphasized that the sentence imposed must both “afford adequate deterren[ce]” and
“protect the public from further crimes of this defendant.” Id. In that regard, the District
Court noted an “overall impression” of Corbin that was “negative[.]” Id. at 336, 337. The
District Court based this observation primarily on Corbin’s “lack of character” and “lack
of maturity” that became evident during his trial testimony. Id. at 337. Although the
District Court noted both the need to avoid “unwarranted sentence disparities among . . .
defendants with similar records” and the reality that Corbin did “not have a criminal
history that would prompt the Court to punish him as a repeat offender,” the District
Court found that Corbin’s testimony demonstrated a “proclivity to violence” that
warranted a longer term of incarceration. Id. at 338. Specifically, the District Court found
that Corbin’s willingness during his trial testimony to claim “in a very relaxed way” that
he had committed prior criminal acts justified an increased term of imprisonment. Id.
With respect to the acquitted conduct charged in Count One, the District Court observed
as follows:
Now, the acquitted conduct, the bank robbery in New Jersey for which the
jury did not find proof beyond a reasonable doubt, certainly there was proof
by a preponderance of the evidence. . . . But I’m not sure it’s necessary to
rely upon that in imposing a higher than [G]uideline sentence in this case
because [Corbin] revealed such a lack of maturity, a lack of self-control, a
lack of personal values when he testified.
Id. at 337–38. Finally, the District Court observed that Corbin was “in need of
correctional treatment” and that “it would be helpful, clearly, for [Corbin] to have the
benefit of the kind of counseling and corrective treatment that he could receive” during
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any period of incarceration. Id. at 338.
Corbin filed his timely notice of appeal the next day, and four days later, the
District Court filed a written explanation of reasons for the variant sentence imposed. The
District Court essentially reiterated the bases elucidated at the sentencing hearing,
including, inter alia, (i) Corbin’s “violent volatile personality” and “lack of personal
values”; (ii) the “hypocritical” nature of Corbin’s explanation for his actions, which the
District Court found to be part of “a struggle for power or a self-image struggle rather
than a display of fatherly love or frustration”; and (iii) Corbin’s “unwillingness to take
responsibility for his actions[.]” Id. at 6. The written explanation confirmed that the
District Court imposed the variant sentence “without relying upon” the acquitted conduct
charged in Count One, and the District Court again observed that Corbin “would benefit
from anger management counseling and parental responsibility counseling” while
incarcerated. Id.
II.
We exercise appellate jurisdiction over Corbin’s claims of sentencing error under
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Our standard of review differs based on
whether the alleged sentencing error was raised below. If so, we review for abuse of
discretion; if not, we review for plain error. See United States v. Lloyd, 469 F.3d 319, 320
(3d Cir. 2006).
Where we review for abuse of discretion, “our role is two-fold.” United States v.
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Wise, 515 F.3d 207, 217 (3d Cir. 2008). First, we must “ensure that the district court
committed no significant procedural error” in imposing sentence. Id. Second, “[i]f we
determine that the district court has committed no significant procedural error, we then
review the substantive reasonableness of the sentence[.]” Id. at 218. With respect to the
first inquiry, a district court commits significant procedural error by, inter alia,
failing to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the § 3553(a)
factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence—including an explanation for any
deviation from the Guidelines range.
Gall v. United States, 128 S. Ct. 586, 597 (2007), quoted in Wise, 515 F.3d at 217. Of
course, “we do not defer to a district court when the asserted procedural error is purely
legal,” and “a district court will be held to have abused its discretion if its decision was
based on . . . an erroneous legal conclusion.” Wise, 515 F.3d at 217 (citing Koon v. United
States, 518 U.S. 81, 100 (1996)). With respect to the second inquiry—review of a
sentence’s substantive reasonableness—we review for abuse of discretion “regardless of
whether [the sentence] falls within the Guidelines range.” Id. at 218 (citing Gall, 128 S.
Ct. at 597). Accordingly, “[a]s long as a sentence falls within the broad range of possible
sentences that can be considered reasonable in light of the § 3553(a) factors, we must
affirm.” Id.
Where we review for plain error, we have described the analysis as follows:
There must be an error that is plain and that affects substantial rights. The
deviation from a legal rule is error, and an error is plain if it is clear or
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obvious. In most cases, an error affects substantial rights if it is prejudicial,
i.e., affected the outcome of the district court proceedings. . . . We will
exercise our discretion and vacate the sentence if the plain error affecting
substantial rights also seriously affects the fairness, integrity, or public
reputation of judicial proceedings.
United States v. Evans, 155 F.3d 245, 251 (3d Cir. 1998) (internal quotations and
citations omitted), quoted in United States v. Voelker, 489 F.3d 139, 153–54 (3d Cir.
2007).
With these principles in mind, we turn to Corbin’s allegations of sentencing error.
III.
Corbin’s first argument, distilled to its essence, is that the District Court committed
significant procedural error by imposing sentence based on Corbin’s personal values,
character, maturity level, and attitude towards personal relationships—factors that Corbin
argues are irrelevant under § 3553(a). We disagree. Specifically, we see no distinction
between § 3553(a)(1)’s specific mandate that district courts consider the “history and
characteristics of the defendant” and the District Court’s evaluation in this case of
Corbin’s values, character, maturity level, and attitude towards personal relationships.
Indeed, it is clear that the District Court’s findings with respect to Corbin’s history and
personal characteristics were relevant to the determination that a variant sentence was
necessary to reflect the seriousness of the offense, to afford adequate deterrence, and to
protect the public. See § 3553(a)(2)(A)–(C). Specifically, the District Court relied upon
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an assessment of Corbin’s credibility in rejecting his “hypocritical” attempt to mitigate
the seriousness of his offense conduct by arguing that he made the threats out of
frustration and love for his son. App. 6. The District Court also relied on observations
about Corbin’s values, character, and maturity level in finding that his “proclivity to
violence” justified an increased sentence for both deterrence and incapacitation purposes.3
Id. Accordingly, because the District Court’s consideration of Corbin’s values, character,
maturity level, and attitude towards personal relationships was consistent with § 3553(a)’s
mandates, we find no procedural error—let alone a significant procedural error—in this
regard.4
IV.
We find Corbin’s second argument—that the District Court committed significant
procedural error by imposing a longer term of incarceration based on Corbin’s need for
mental health treatment—to be equally without merit. To be sure, Corbin correctly cites
our holding in United States v. Manzella, 475 F.3d 152, 162 (3d Cir. 2007), that district
3
Not surprisingly, Corbin cites no authority, nor have we found any, supporting his
argument that the District Court’s consideration of his history and personal characteristics
was inappropriate. This is sensible, as Corbin’s argument, if accepted, would lead to an
unwarranted, restrictive interpretation of Congress’s broad mandate in § 3553(a)(1) that a
district court consider a defendant’s personal history and characteristics in tailoring a
sentence that furthers the goals enumerated by § 3553(a)(2).
4
Although the parties devote substantial effort to the appropriate standard of
review for this argument, we need not resolve the parties’ dispute in this regard, as we
find that the District Court committed no error—plain or otherwise—in considering
Corbin’s values, character, maturity level, and attitude towards personal relationships in
imposing sentence.
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courts are prohibited from “effecting . . . rehabilitative goals . . . either in sentencing a
defendant to a term of imprisonment or, if a term of imprisonment is otherwise to be
imposed, in determining the length of that term.” Yet, our review of the record makes it
pellucidly clear that the District Court did not do so here. Rather, the District Court
merely observed that during any term of incarceration, Corbin would benefit from mental
health treatment and counseling. See United States v. Watson, 482 F.3d 269, 275 (3d Cir.
2007) (observing that the “mere fact that a [district] court may take into account or
mention correction or rehabilitation along with other factors in arriving at or explaining
its [overall] sentence” does not demonstrate that the district court imposed a term of
incarceration, or determined the length of that term, for rehabilitative purposes (emphasis
in original)). Moreover, both Corbin and his counsel raised his need for mental health
treatment at sentencing as a mitigating factor, and the District Court’s observation that
Corbin could receive such treatment while incarcerated was not a procedural error—let
alone a significant procedural error—in imposing sentence.5
V.
Next, we find it unnecessary to address Corbin’s third argument—that sentencing
Corbin based on the acquitted conduct charged in Count One constituted significant
procedural error because it violated his Sixth Amendment jury trial rights—because we
5
Again, although the parties devote substantial effort to the appropriate standard of
review, we need not resolve the parties’ dispute in that regard, as we find that the District
Court did not rely on Corbin’s need for mental health treatment in imposing a term of
incarceration or in fixing the length of that term.
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find that the District Court did not impose the variant sentence based on that conduct.
Indeed, the District Court stated at sentencing that it was not necessary to rely on that
conduct, and the District Court’s written statement of reasons plainly confirmed that the
acquitted conduct was not the basis for the variant sentence imposed. Accordingly, we
need not address the parties’ arguments with respect to the appropriateness of considering
acquitted conduct at sentencing.6
VI.
Corbin’s final argument is that even absent a finding that the District Court
committed significant procedural error, we should nonetheless reverse the 50-month
variant sentence imposed here on the basis that it was substantively unreasonable. We
disagree. Importantly, we are mindful of the Supreme Court’s holding in Gall that in
reviewing variant sentences for substantive reasonableness under the appropriate abuse-
of-discretion standard, we must “give due deference to [a] district court’s decision that
the § 3553(a) factors, on a whole, justify the extent of the variance.” 128 S. Ct. at 597.
6
It is worth noting that it appears a district court may, in fact, base a sentence on
acquitted conduct provided that conduct has been proven by a preponderance of the
evidence and the sentence imposed is within the statutory range for the convicted offense.
See, e.g., United States v. Grier, 475 F.3d 556, 567–68 (3d Cir. 2007) (reliance on facts
that may constitute a “separate offense,” if considered in sentencing within the statutory
range for the convicted offense, “do[es] not implicate the rights to a jury trial and proof
beyond a reasonable doubt” because those facts “do not constitute ‘elements’ of a ‘crime’
” (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000))), quoted in United States v.
Jiminez, 513 F.3d 62, 88 (3d Cir. 2008) and United States v. Ali, 508 F.3d 136, 145–46
(3d Cir. 2007); see also United States v. Watts, 519 U.S. 148, 157 (1997); United States v.
Martinez, 525 F.3d 211, 215 (2d Cir. 2008) (citing Grier, 475 F.3d at 567–68); United
States v. White, 551 F.3d 381, 384–85 (6th Cir. 2008) (same).
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This is sensible, as “ ‘the sentencing judge has access to, and greater familiarity with, the
individual case and the individual defendant[.]’ ” Id. at 597–98 (quoting Rita v. United
States, 127 S. Ct. 2456, 2469 (2007)). Indeed, in determining whether a variance is
justified by “the totality of the circumstances,” it is clear that “ ‘[d]istrict courts have an
institutional advantage over appellate courts[.]’ ” Id. at 597, 598 (quoting Koon, 518 U.S.
at 98). Accordingly, “[t]he fact that [an] appellate court might reasonably . . . conclude[]
that a different sentence was appropriate is insufficient to justify reversal of the district
court.” Id. at 597.
With these principles in mind, we find that the District Court imposed a
substantively reasonable sentence when it found that a variant sentence of 50 months was
sufficient, but not greater than necessary, to reflect the seriousness of Corbin’s death
threat, to provide just punishment for that threat, to afford adequate deterrence, and to
protect the public. Indeed, we find it difficult to imagine a more serious threatening
communication than the one Corbin made—to murder his ex-girlfriend and her
family—and it is understandable that the District Court found a variant sentence to be just
punishment for that threat. Moreover, in light of the District Court’s superior institutional
position from which to assess the import of Corbin’s trial testimony, we see no reason to
disagree with the finding that Corbin’s apparent proclivity to violence, immaturity, lack of
values, and poor attitude towards personal relationships justified a variant sentence to
afford adequate deterrence and to protect the public from further crimes by Corbin.
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Accordingly, we find that the 50-month variant sentence imposed here, reviewed for
abuse of discretion, was substantively reasonable.
VII.
For the foregoing reasons, we affirm the District Court’s judgment.
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