United States v. Hakim King , 644 F. App'x 214 ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 15-2789
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UNITED STATES OF AMERICA
v.
HAKIM KING
a/k/a HAK,
a/k/a HOCK,
Appellant
______
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 2-12-cr-00345-002)
District Judge: Honorable Michael M. Baylson
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
March 18, 2016
Before: CHAGARES, RESTREPO, and VAN ANTWERPEN, Circuit Judges
(Opinion Filed: March 21, 2016)
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OPINION
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VAN ANTWERPEN, Circuit Judge.

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Appellant Hakim King appeals his sentence imposed by the U.S. District Court for
the Eastern District of Pennsylvania on July 21, 2015. For the following reasons, we will
affirm the decision of the District Court.
I. Factual Background and Procedural History
King and co-defendant Rezekiel Harris1 robbed two convenience stores in
February 2012. (Presentence Investigative Report ¶¶ 8–9, 14–15). In both robberies,
Harris used a gun to force store employees to give them money. (Id. ¶¶ 9, 14). He shot
the gun at the floor during the first robbery, causing debris to strike an employee-victim
and injuring the victim’s eye. (Id. ¶¶ 8–9). During the first armed robbery, King
positioned himself at the entry to the store to prevent people from entering or leaving and
to act as a lookout. (Id. ¶ 9). King played a more active role during the second robbery by
stealing money and cigarettes. (Id. ¶ 15). Law enforcement arrested King on February 22,
2012. (Id. ¶ 13).
A grand jury indicted King in a Second Superseding Indictment with two counts
of robbery which interfered with interstate commerce in violation of 18 U.S.C. § 1951(a)
and aiding and abetting in violation of 18 U.S.C. § 2; and with two counts of using and
carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C.
§ 924(c)(1) and aiding and abetting in violation of 18 U.S.C. § 2. (App. 255–56). After a
two day trial, a jury found King guilty of all charges. (Id. at 33, 162, 285–89). The
District Court initially sentenced King to 498 months’ imprisonment on May 15, 2014.
1
Harris pleaded guilty to the charges against him and was a cooperating witness with the
Government against King. (Appellant’s Br. 4). He was sentenced to twenty years’
imprisonment based on his cooperation and admission of guilt. (App. 352–53).
2
(Id. at 313–16). King appealed his sentence and we determined that summary remand
was appropriate because the parties agreed that the District Court erred by not ordering a
full presentence investigative report. (Id. at 8). We therefore vacated the judgment of the
District Court and remanded for resentencing. (Id.). At resentencing on July 21, 2015, the
Court independently reached the same sentence as before, 498 months, aided by a
complete presentence investigative report. (Id. at 320, 352–53). King timely appealed.
(Id. at 1).
II. Discussion2
Appellant presents two arguments on appeal: (A) the jury instruction for aiding
and abetting the use of a firearm during a robbery did not comport with Rosemond v.
United States, 134 S. Ct. 1240 (2014); and (B) the District Court imposed a substantively
unreasonable sentence. For the following reasons we reject both of these arguments.
A. Jury Instruction3
Appellant argues that the jury instruction for aiding and abetting the use of a
firearm during a robbery did not comply with Rosemond. (Appellant’s Br. 7–8).
Specifically, King contends that the District Court failed to instruct that he must have had
sufficient advance knowledge that his confederate had a firearm so that he had an
opportunity to withdraw from the criminal enterprise. (Id. at 8–9); see Rosemond, 134 S.
2
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction to
review the final decision of the District Court and King’s sentence under 18 U.S.C.
§ 3742(a) and 28 U.S.C. § 1291.
3
We review legal questions, including whether King waived his right to appeal the jury
instruction used in this case, de novo. United States v. Price, 558 F.3d 270, 277 (3d Cir.
2009).
3
Ct. at 1249–50.4 We reject this argument because King waived this issue when he failed
to raise it in his first direct appeal in this case.
In United States v. Pultrone, we dismissed the defendant’s appeal for lack of
jurisdiction because we determined that he “failed to pursue the allegations of error raised
here when he first filed a direct appeal.” 241 F.3d 306, 307 (3d Cir. 2001) (internal
quotation marks omitted). Pultrone voluntarily withdrew his initial appeal, but the
government filed a cross-appeal contending that the District Court erred in not sentencing
Pultrone to the statutory mandatory minimum sentence. Id. We agreed and proceeded to
vacate the judgment and remand for resentencing. Id. After resentencing, Pultrone
appealed. He raised issues regarding the sufficiency of evidence to determine the amount
of cocaine for which he was responsible and claimed ineffective assistance of counsel. Id.at 306–07. We concluded that he “waived his right to appeal issues conclusively
established by that judgment” and we explained that “[t]he grant of remand on appeal
does not reopen the order appealed from; instead, remand commences a new proceeding
which will ultimately terminate in another final order.” Id. at 308 (alteration in original)
4
The Court instructed the jury that:
[Y]ou may convict the defendant of aiding and abetting Rezekiel Harris’
commission of the firearm offense . . . if you find that Harris used or carried
a firearm during the commission of either or both robberies, and if you also
find that the Government has proved beyond a reasonable doubt that the
defendant had advance knowledge that Harris was going to use or carry a
gun during the commission of either or both robberies, and that defendant,
thereafter, continued to participate in the robbery or robberies.
(App. 266–67). King argues that the instructions should have explicitly provided that the
“requisite advance knowledge must be at a time when the defendant has a reasonable
opportunity to walk away.” (Appellant’s Br. 13) (citing Rosemond, 134 S. Ct. at 1249–
50).
4
(quoting United States v. Mendes, 912 F.2d 434, 437 (10th Cir. 1990)) (internal quotation
marks omitted).5
Pultrone controls, and therefore we will similarly dismiss King’s argument
regarding the jury instruction for lack of jurisdiction. King already appealed his
conviction and sentence, arguing that the District Court erred procedurally at sentencing
by not ordering a complete presentence investigation and report, by not considering
King’s background and mental health, and by not allowing King to present mitigating
circumstances. Brief for the Appellant, Hakim King at 6–7, United States v. Hakim King,
No. 14-2818 (3d Cir. Oct. 7, 2014). King also argued, as he argues again here, that the
Court erred by imposing a substantively unreasonable sentence. Id. at 24; (Appellant’s
Br. 14). Appellant’s brief in his initial direct appeal did not mention Rosemond or raise
any contentions regarding the jury instruction in this case. In the present appeal, King
does not rebut the Government’s claim that he has waived this argument. Therefore,
because King has waived his argument regarding the jury instruction, we will dismiss this
argument for lack of jurisdiction.6
5
The Government aptly notes that we have reached the same conclusion in many non-
precedential opinions in reliance on Pultrone. (Appellee’s Br. 19 n.3); see, e.g., United
States v. Bankoff, 514 F. App’x 112, 115 (3d Cir. 2013) (dismissing appellant’s argument
that he was not competent to stand trial because he did not raise the issue in his first
appeal).
6
Because we will dismiss this argument for lack of jurisdiction, we will not review the
merits of King’s claim that the District Court plainly erred by failing to instruct the jury
on the aiding and abetting charge in compliance with Rosemond. We note that in United
States v. Miller, we explained that there is an exception to the Pultrone waiver doctrine
when a case is remanded for de novo resentencing. 594 F.3d 172, 179 (3d Cir. 2010).
Appellee acknowledges that King’s resentencing was de novo. (Appellee’s Br. 17).
5
B. Sentencing7
King also argues that the District Court abused its discretion by failing to grant a
downward variance and by imposing a sentence greater than necessary to comply with
the purposes of 18 U.S.C. § 3553(a)(2). (Appellant’s Br. 14). We reject these arguments
and will affirm the sentence imposed by the District Court.
Appellate review of King’s sentence requires us to consider the substantive
reasonableness of the sentence. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009)
(en banc). The party challenging the sentence has the burden of proving
unreasonableness. Id. (citing United States v. Cooper, 437 F.3d 324, 332 (3d Cir. 2006)).
“Ultimately, [t]he touchstone of ‘reasonableness’ is whether the record as a whole
reflects rational and meaningful consideration of the factors enumerated in 18 U.S.C.
§ 3553(a).” Id. at 568 (alteration in original) (quoting United States v. Grier, 475 F.3d
556, 571 (3d Cir. 2007)) (internal quotation marks omitted).
We “may apply a presumption of reasonableness to a district court sentence that
reflects a proper application of the Sentencing Guidelines.” Rita v. United States, 551
Nonetheless, King was only permitted to raise sentencing claims, not challenges to his
underlying conviction. See Miller, 594 F.3d at 179 (“[W]hen the resentencing is de novo
rather than limited, issues concerning the first sentence that were previously waived may
be raised in the first instance if warranted by the second sentence.”) (citing United States
v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002)). King’s challenge to the jury instruction
concerns his conviction, not his sentence. In addition, we vacated and remanded King’s
sentence for the purpose of preparing a full presentence investigation report to aid the
Sentencing Court. (App. 8). Our remand did not implicate or warrant King’s jury
instruction challenge.
7
We review the sentence imposed by the District Court for abuse of discretion. Miller,
594 F.3d at 183. King has not waived this argument because it pertains to the
resentencing.
6
U.S. 338, 347 (2007). This presumption reflects the fact that we are reviewing a sentence
that both the District Court and Sentencing Commission have reached; “[t]hat double
determination significantly increases the likelihood that the sentence is a reasonable one.”
Id. Because we review for abuse of discretion, “we will affirm [the sentence] unless no
reasonable sentencing court would have imposed the same sentence on [King] for the
reasons the district court provided.” Tomko, 562 F.3d at 568.
We conclude that King’s sentence is substantively reasonable. All of King’s
arguments on appeal regarding his sentence were sufficiently addressed by the District
Court. King may be correct that age is an appropriate consideration for a variance. See
United States v. Cavera, 550 F.3d 180, 197 (2d Cir. 2008) (en banc). The Court heard
arguments regarding King’s age, but ultimately it decided that a sentence at the
mandatory minimum, which King advocates for on appeal, would not be “an appropriate
discharge of [the Court’s] responsibilities to protect society from people like [King].”
(App. 338–40, 352). The Court discussed the necessity of the thirty-five year mandatory
minimum sentence for the firearm offenses, the importance of additional time for the
robberies themsleves, King’s criminal history and conviction for a violent assault of a
woman, King’s tendency for recidivism, and the reason King’s co-defendant who
cooperated with the Government received a lesser sentence. (Id. at 349–53). At the same
time, the Court also considered King’s background and mental health and the fact that
King did not actually brandish or hold the gun in this case. (Id. at 348–49). The Court
additionally disregarded King’s marijuana convictions in calculating his criminal history.
(Id. at 349).
7
King’s sentence is within the Sentencing Guidelines range, which renders the
sentence presumptively reasonable. See Rita, 551 U.S. at 347. Further, the sentence
reflects the seriousness of the crimes committed, and a rational and meaningful
consideration by the District Court. See 18 U.S.C. § 3553(a); Tomko, 562 F.3d at 568.
Therefore, we will affirm the sentence imposed as substantively reasonable.
III. Conclusion
For the foregoing reasons, we will affirm the sentence imposed by the District
Court on July 21, 2015.
8