United States v. Sparks , 184 F. App'x 185 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
6-9-2006
USA v. Sparks
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2980
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-2980
UNITED STATES OF AMERICA
v.
JESSE L. SPARKS,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. No. 03-00364-1)
Honorable Malcolm Muir, District Judge
Submitted under Third Circuit LAR 34.1(a)
June 1, 2006
BEFORE: AMBRO, FUENTES, and GREENBERG, Circuit Judges,
(Filed: June 9, 2006)
OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before the court on Jesse L. Sparks’ appeal from a sentence
the district court imposed on him after the Supreme Court decided United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). Sparks, while a prisoner at FCI-Allenwood,
on October 15, 2002, assaulted Rico Woodland, another prisoner at FCI-Allenwood,
resulting in Woodland suffering massive injuries. Although the grand jury returned a
five-count indictment against Sparks, ultimately on August 20, 2004, he pleaded guilty
pursuant to a written agreement to a single count of assault resulting in serious bodily
injury in violation of 18 U.S.C. § 113(a)(6). A significant provision of the plea
agreement provided that the government reserved “the right to recommend a sentence up
to and including the maximum sentence of imprisonment and fine allowable.”
Following his guilty plea, the probation department prepared a presentence report
which, as revised, calculated a guideline range of 46 to 57 months. As it happened,
however, the Supreme Court decided Booker on January 12, 2005, before the district
court sentenced Sparks. Clearly, the district court considered that the proposed guideline
range was too low as on January 14, 2005, it entered an order taking note of Booker and
indicating that it had discretion to deviate from what, under Booker, had become an
“advisory” guideline range. Thus, the court in its order advised Sparks that it was
considering imposing a sentence “substantially” above the guideline range but was giving
him an opportunity to file a motion to withdraw his plea of guilty.
After the court entered its January 14, 2005 order, Sparks knew from the plea
agreement and the January 14, 2005 order that the government could recommend that the
court impose the maximum sentence allowed by law,1 the guidelines had become
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1 He does not contend that the court imposed a sentence that exceeded that maximum
2 sentence allowed by law.
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advisory, and the court was considering imposing a sentence substantially above the
guideline range. Nevertheless, Sparks did not seek to withdraw his guilty plea. The court
further emphasized the possibility that it would sentence Sparks to a sentence in excess of
the range set forth in the presentence report when on February 22, 2005, it directed the
government to file a motion for an upward departure from the proposed guideline range in
the presentence report. The government subsequently filed that motion and, though
Sparks filed a brief in opposition to the motion for the upward departure, he did not seek
to withdraw his guilty plea. On May 19, 2005, the court increased Spark’s guideline
range to 70 to 87 months predicated on a 4-level upward departure. Then, on June 3,
2005, the court sentenced Sparks to a ten-year term of imprisonment to run consecutively
to the sentence he then was serving to be followed by a three-year period of supervised
release.
Sparks’ appeal raises the following issues:
The district court erred in imposing a sentence above the advisory
guidelines based on Booker, because [the sentence] violates the ex post
facto clause of the United States Constitution.
The district court erred in imposing a sentence above the advisory
guideline, because the factors upon which the upward departure was based
were already adequately considered by the sentence commission and such
upward departure constituted double counting.
Appellant’s br. at 2.
We reject Sparks’ ex post facto argument as our opinion in United States v.
Pennavaria, 445 F.3d 720 (3d Cir. 2006), forecloses it. In Pennavaria we explained that
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the Supreme Court in Booker said that that case applied to all cases then on direct review.
Id. at 723. Accordingly, it logically follows that Booker must apply in this case in which
the district court imposed the sentence after the Court decided Booker. Thus, we cannot
find that there is an ex post facto violation in this case unless we disregard Booker, a step
we will not take.
We also reject Spark’s second argument. In light of the brutal beating that Sparks
inflicted on Woodland and Woodland’s terrible injuries, the district court was justified in
concluding that the proposed 46 to 57-month sentencing range was unreasonably low.
Overall, it is clear that the court was fully justified in imposing the sentence it did.
The judgment of conviction and sentence entered June 3, 2005, will be affirmed.
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