United States v. Leon Henry , 430 F. App'x 151 ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-2896
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UNITED STATES OF AMERICA
v.
LEON HENRY, JR.,
Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim. Action No. 2:00-cr-00667-PBT-4)
District Judge: Honorable Petrese B. Tucker
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Submitted Under Third Circuit LAR 34.1(a)
April 28, 2011
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Before: SLOVITER, GREENAWAY, JR., and ROTH, Circuit Judges
(Opinion Filed: June 9, 2011)
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OPINION
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GREENAWAY, JR., Circuit Judge
Appellant Leon Henry, Jr. (“Henry”) appeals the District Court’s January 8, 2009
Order revoking his probation and sentencing him to twenty-four months in prison, running
consecutive to an existing ninety-six month federal prison sentence. Henry now files this
timely appeal. Henry argues that the sentence must be vacated because it is both
procedurally and substantively unreasonable. He also argues that the District Court
improperly failed to issue a written statement of reasons for the above Guidelines sentence
imposed. Neither of these arguments is persuasive.
For the following reasons, we will affirm the District Court’s Order.
I. BACKGROUND
We write primarily for the benefit of the parties and shall recount only the essential
facts. Leon Henry, Jr. was employed by the Philadelphia Medical Examiner’s Office in
Pennsylvania. On December 19, 2000, a grand jury returned a superseding indictment
charging Henry with offenses related to items stolen from deceased persons, including
credit cards, checks, and credit information.1 Henry and other former employees were also
charged with the use, and attempted use, of decedents’ information and checks to obtain
money and merchandise. Henry was specifically charged with one count of conspiracy to
commit credit card fraud, in violation of 18 U.S.C. § 1029(b)(2), and one count of
possession of stolen firearms, in violation of 18 U.S.C. § 922(j).
Henry pled guilty to both charges, pursuant to a cooperation plea agreement with
the government. Before sentencing, the government filed a motion for a downward
departure, pursuant to U.S.S.G. § 5K1.1. On April 1, 2002, the sentencing court granted
the motion and sentenced Henry to four years of probation.
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Fourteen other employees of the Philadelphia Medical Examiner’s Office were also
indicted.
2
On February 1, 2006, two months before Henry’s probation term was scheduled to
end, the Probation Office filed a violation petition against Henry alleging that, while on
probation, he was charged with committing new crimes (that case is Cr. No. 06-33).2 A
hearing on the violation petition was held January 8, 2009. The government asked the
District Court to impose a sentence above the advisory Guidelines range and to order that
sentence to run consecutive to the sentence imposed under Cr. No. 06-33. The District
Court found that Henry had violated the terms of his probation and granted the
government’s requests for the above guidelines range sentence. The District Court
imposed a sentence of 24 months of imprisonment, to run consecutive to the 96-month
sentence imposed in Cr. No. 06-33. Henry filed a timely appeal.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had subject matter jurisdiction, pursuant to 18 U.S.C. §§ 3231and 3565. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2
On January 23, 2006, Henry was charged in a federal indictment with conspiracy to make
false statements to a federal firearms dealer, in violation of 18 U.S.C. § 371, and two
counts of making false statements to a firearms dealer, in violation of 18 U.S.C. §
924(a)(1)(A). The grand jury later returned a second superseding indictment charging
Henry with the same conspiracy offense, along with one count of making a false statement
to a firearms dealer, one count of possession of a firearm by a convicted felon, in violation
of 18 U.S.C. § 922(g)(1), and one count of conspiracy to commit armed bank robbery, in
violation of 18 U.S.C. § 371. On June 1, 2007, Henry was convicted of conspiracy to make
false statements and making false statements to a firearms dealer, and possession of a
firearm. He was acquitted of the bank robbery conspiracy charge. As a result, Henry was
sentenced to 96 months of imprisonment by the District Court on November 25, 2008 and
was also ordered to pay restitution in the amount of $28,665.54 and a special assessment of
$200.
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A district court’s sentencing procedure is reviewed for abuse of discretion. Gall v.
United States, 552 U.S. 38, 51-52 (2007). On abuse of discretion review, the Court of
Appeals gives due deference to a district court’s sentencing decision. Id. at 52. District
courts have discretion when sentencing and appellate review is limited to determining
whether the sentence imposed is reasonable.
III. LEGAL STANDARD
After the Supreme Court’s decision in United States v. Booker, 543 U.S. 220(2005), Sentencing Guidelines were no longer deemed mandatory, instead they were
deemed advisory. Since Booker, district courts are required to follow a three-step process
in determining the appropriate sentence in this advisory scheme: (1) courts must calculate a
defendant’s Guidelines sentence precisely as they would have before Booker; (2) they
must formally rule on the motions of both parties and state on the record whether they are
granting a departure and how that departure affects the Guidelines calculation, and take
into account the court’s pre-Booker case law, which continues to have advisory force; and
(3) courts are required to exercise their discretion by considering the relevant 18 U.S.C. §
3553(a) factors in setting the sentence they impose regardless of whether it varies from the
sentence calculated under the Guidelines. United States v. Gunter, 462 F.3d 237, 247 (3d
Cir. 2006). The sentencing courts are statutorily required to state their reasons for
imposing a sentence, although a comprehensive, detailed opinion is not required. Rita v.
United States, 551 U.S. 338, 356 (2007). The sentencing court must provide an
explanation that is sufficient to satisfy the appellate court that the district court considered
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the parties’ arguments and had a reasoned basis for exercising its own decision-making
authority. Id.The Third Circuit’s responsibility on appellate review of a criminal sentence “is
limited yet important: we are to ensure that a substantively reasonable sentence has been
imposed in a procedurally fair way.” United States v. Levinson, 543 F.3d 190, 195 (3d Cir.
2008). However, “[i]t is not the role of the appellate court to substitute its judgment for
that of the sentencing court as to the appropriateness of a particular sentence,” except to the
extent specifically directed by statute. Williams v. United States, 503 U.S. 193, 205 (1992)
(quoting Solem v. Helm, 463 U.S. 277, 290 (1983)).
An appellate court’s reasonableness review of a sentence has both procedural and
substantive components. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009). The
procedural component requires the appellate court to ensure that the district court
committed no significant procedural error, including: (1) failing to calculate (or
improperly calculating) the U.S. Sentencing Guidelines range; (2) treating the Guidelines
as mandatory; (3) failing to consider the 18 U.S.C. § 3553(a) factors; and (4) selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the chosen
sentence and to include an explanation for any deviation from the guidelines range. Id. If
the district court's sentence is procedurally sound, we will affirm it unless no reasonable
sentencing court would have imposed the same sentence on that particular defendant for
the reasons the district court provided. Id. at 568.
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The substantive component requires the appellate court to take into account the
totality of the circumstances. United States v. Lychock, 578 F.3d 214, 218 (3d Cir. 2009).
Although the appellate court considers the extent of any variance from the advisory
Guidelines range, it must also give due deference to the district court’s decision that the §
3553(a) factors, on a whole, justify the extent of the variance. Id. The substantive
reasonableness of each sentence must be evaluated on its own terms, based on the reasons
that the district court provided, in light of the particular facts and circumstances of that
case. Tomko, 562 F.3d at 573. In examining the totality of the circumstances, we
determine whether a reasonable court would have applied the same sentence as the District
Court.
The reasonableness standard has been elucidated in both Booker, 543 U.S. at 261
and United States v. Cooper, 437 F.3d 324, 329-32 (3d Cir. 2006).
IV. ANALYSIS
Henry argues that his sentence was procedurally and substantively infirm because
the District Court failed to consider all of the 18 U.S.C. § 3553(a) factors and inadequately
evaluated the one factor that it did consider. Henry also argues that the District Court
improperly failed to issue a written statement of reasons for the above-Guidelines sentence
imposed.
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Procedural Error
We are guided by the requirement that sentencing courts must give meaningful
consideration to all of the factors in 18 U.S.C. § 3553(a).3 See United States v. Olhovsky,
562 F.3d 530, 546 (3d Cir. 2009) (citing Cooper, 437 F.3d at 329. A district court’s
“failure to consider the § 3553(a) factors” can create a procedurally unreasonable sentence.
United States v. Levinson, 543 F.3d 190, 195 (3d Cir. 2008) (quoting Gall v. United States,
552 U.S. 38, 51 (2007)).
Henry does not claim that his Sentencing Guidelines determination was the result of
a miscalculation or that it was based on clearly erroneous facts. He does argue, however,
that the District Court did not consider all of the §3553(a) factors and did not adequately
evaluate the one factor it considered. We disagree. It is clear from the record that the
District Court considered the 3553(a) factors. In the transcript from the violation hearing,
the District Court stated:
3
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed - - (A) to
reflect the seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to
protect the public from further crimes of the defendant: and (D) to provide the defendant
with needed educational or vocational training, medical care, or other correctional
treatment in the most effective manner; (3) the kinds of sentences available; (4) the kinds of
sentence and the sentencing range established for - - (A) the applicable category of offense
committed by the applicable category of defendant as set forth in the guidelines . . . ; (5)
any pertinent policy statement . . . issued by the Sentencing Commission . . . [that] is in
effect on the date the defendant is sentenced; (6) the need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of similar
conduct; and (7) the need to provide restitution to any victims of the offense.
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Now the Court understands and appreciates the guidelines
range is 12 – 18 months and I understand and appreciate that
the Guidelines range is discretionary and not mandatory. . .
[T]he Court will impose a sentence which I think takes into
consideration the seriousness of the events and it takes into
consideration the importance of punishment for separate
offenses and that would be the violation of my probation. It
takes into consideration the need to punish. It takes into
consideration the need to impress upon Mr. Henry the
importance of respect for the law.
(Supp. App. 39).
These statements clearly indicate that the District Court not only took the §3553(a)
factors into consideration at sentencing, but also recognized the advisory nature of those
factors. Although the District Court did not separately list each of the §3553(a) factors,
we find that the record reflects consideration of them. We have held that sentencing
courts need not discuss each of the § 3553(a) factors “if the record makes clear the court
took the factors into account in sentencing.” Cooper, 437 F.3d at 329. Further, the
District Court held a detailed hearing and provided Henry an opportunity to be heard by
the Court.
Henry next contends that the District Court failed to state a reason for the sentence
imposed. The District Court did not issue a separate opinion. Nor did it provide
information on the reason for its variance in its judgment. However, the District Court
does provide, in the record, its reasons for imposing the 24-month sentence, stating that
Henry had been placed on probation four years ago, but committed various offenses
during his probation. We have held that the district court is only required to state on the
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record its general reasons under §3553(a) for imposing a more stringent sentence. See
United States v. Blackston, 940 F.2d 877, 893 (3d Cir. 1991). The District Court pointed
out that the crimes for which Henry was convicted were “extremely serious actions . . .”
(Supp. App. 38), and that it would impose a sentence it thought would, inter alia, take the
seriousness of Henry’s crimes into consideration. The District Court also stated that it
would not impose a concurrent sentence instead of a consecutive sentence because such a
sentence would not take into consideration or recognize that Henry’s actions were in
violation of the Court’s probation.
We find that the District Court did not commit procedural error. The §3553(a)
factors were considered in sentencing and provided an explanation for the sentence the
Court imposed upon Henry. As such, the sentence was procedurally reasonable.
Substantive Reasonableness
We have held that courts must state adequate reasons for a sentence on the record,
so that we can engage in meaningful appellate review. United States v. Goff, 501 F.3d 250,
256 (3d Cir. 2007). In Tomko, we stated that “the substantive reasonableness of each
sentence must be evaluated on its own terms, based on the reasons that the district court
provided, in light of the particular facts and circumstances of that case.” 562 F.3d at 573.
The substantive component requires the appellate court to take into account the
totality of the circumstances. Id. In looking at the totality of the circumstances, we
determine whether a reasonable court would have applied the same sentence as the district
court in this case. We have determined from the District Court’s statements in Henry’s
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violation hearing that it took all of the facts of Henry’s case into consideration, including
the fact that Henry committed serious crimes while on probation. The District Court stated
that Henry’s crimes were committed “clearly in the beginning of [his] probationary period
and clearly during the period of the probation.” (Supp. App. 30.) It is apparent from the
record that the District Court considered the particular facts and circumstances of Henry’s
case and, as mentioned, provided its reasons for the sentence imposed.
We find that the District Court’s sentence was substantively reasonable. The
District Court’s decision to upwardly depart from the Sentencing Guidelines was based on
the totality of the circumstances analysis and was sound. The Government recognizes that
the District Court failed to state the reasons for the above-Guidelines sentence in a written
order, but we agree with the Government that because the District Court stated those
reasons in open court where its reasons are available on the record, Henry suffered no
prejudice.
V. CONCLUSION
For the reasons provided, the above Guidelines range sentence that the District
Court meted out was not procedurally or substantively unreasonable. Therefore, we will
affirm the District Court’s order.
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