United States v. George Greene, Jr. , 431 F. App'x 191 ( 2011 )


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  •                                                                   NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    No. 10-3267
    ___________
    UNITED STATES OF AMERICA
    v.
    GEORGE N. GREENE, JR.,
    Appellant
    _______________________
    On Appeal from the District Court of the Virgin Islands
    Division of St. Thomas and St. John
    D.C. Criminal No. 3-09-cr-00032-001
    (Honorable John E. Jones III)
    ______________
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    April 11, 2011
    Before: SCIRICA, RENDELL and AMBRO, Circuit Judges.
    (Filed June 17, 2011 )
    _________________
    OPINION OF THE COURT
    _________________
    SCIRICA, Circuit Judge.
    George Greene, Jr., a sergeant with the Virgin Islands Police Department, was
    convicted after a jury trial on two charges of unlawful possession of firearms with
    obliterated serial numbers in violation of 
    18 U.S.C. §§ 922
    (k) and 924(a)(1)(B). The
    court sentenced Greene to concurrent 30-month terms of imprisonment followed by two
    years‟ supervised release and imposed a $100 special assessment on each count. We will
    affirm.
    I.
    Greene was arrested on August 4, 2009, after a grand jury in the District of the
    Virgin Islands indicted him and two co-defendants. In conjunction with Greene‟s arrest,
    federal law enforcement officials executed a search warrant on his police vehicle. The
    agents discovered two handguns with obliterated serial numbers hidden in a shaving kit
    in Greene‟s personal backpack. The backpack also contained ammunition suited to those
    particular firearms, a black ski mask, a book titled “The Art of Deception: An
    Introduction to Critical Thinking,” and a DVD titled “Barry Cooper‟s Never Get Busted
    Again.” In a voluntary statement furnished following his arrest, Greene told law
    enforcement he would occasionally masquerade as a corrupt officer for intelligence-
    gathering purposes.
    The superseding indictment charged Greene with fifteen counts, and the District
    Court granted Greene‟s motion to sever Counts Twelve and Thirteen, which alleged
    violations of 
    18 U.S.C. §§ 922
    (k) and 924(a)(1)(B). At the trial on those two counts,
    Greene testified he came into possession of the firearms, which had no paperwork or tags
    associated with them, in the regular course of his work in the Forensics Unit. He also
    testified he placed the guns in his backpack with the intent of turning them over to
    Corporal Alvaro de Lugo, an agent allegedly designated as the VIPD liaison to the U.S.
    2
    Bureau of Alcohol, Tobacco and Firearms. Greene‟s trial counsel attempted to elicit
    testimony about Greene‟s prior dealings with de Lugo, but the District Court concluded
    Greene could not proffer an adequate foundation for such testimony and sustained the
    government‟s objection to that line of questioning. The court also denied Greene‟s
    request for a jury instruction that would have permitted the jury to convict only if it found
    Greene had been acting outside the scope of his law enforcement duties while in
    possession of the firearms.
    The jury found Greene guilty on both counts.1 Greene filed a motion for a new
    trial, alleging his brother had been excluded from the voir dire of prospective jurors in
    violation of his Sixth Amendment right to a public trial. The District Court denied the
    motion and sentenced Greene as indicated above. Greene timely appealed.2
    II.
    A.
    1
    Following a separate jury trial in the related case from which these two charges were
    severed, Greene was convicted on six other counts included in the superseding
    indictment: (1) conspiracy to commit extortion, in violation of 
    18 U.S.C. § 1951
    (a); (2)
    extortion, in violation of 
    18 U.S.C. §§ 1951
    (a) and 2; (3) conspiratorial extortion, conflict
    of interest, and solicitation and receipt of a bribe, in violation of 14 V.I.C. § 551; (4)
    extortion under color of official right, in violation of 14 V.I.C. §§ 701 and 11; (5) conflict
    of interest, in violation of 3 V.I.C. §§ 1102(3) and 1108, and 14 V.I.C. § 11; and (6)
    solicitation and receipt of a bribe, in violation of 14 V.I.C. §§ 403 and 11. The court
    sentenced Greene to a 36-month term of imprisonment on the federal charges (Counts 5
    and 6), to be served concurrently with the 36-month term imposed on the territorial
    charges (Counts 7 through 10).
    2
    The District Court had jurisdiction under 
    18 U.S.C. § 3231
    . We have jurisdiction over
    the court‟s final decision under 
    28 U.S.C. § 1291
    .
    3
    Greene argues the court erred when it denied his motion for a new trial under Fed.
    R. Crim. P. 33.3 Greene claimed his Sixth Amendment right to a public trial was violated
    when a court security officer (CSO) temporarily excluded his brother, Curtis Fredericks,
    from the courtroom on the morning of January 20, 2010.4 At an evidentiary hearing, CSO
    Hyram Graneau testified he excluded Fredericks for want of seating space in the
    courtroom.5 Significantly, Graneau testified the trial judge was not on the bench when the
    3
    “Ordinarily, we review a denial of a motion for a new trial under an abuse of discretion
    standard.” United States v. Joseph, 
    996 F.2d 36
    , 39 (3d Cir. 1993). “[A] court abuses its
    discretion when its ruling is founded on an error of law or a misapplication of law to the
    facts.” Planned Parenthood of Central N.J. v. Att’y Gen. of N.J., 
    297 F.3d 253
    , 265 (3d
    Cir. 2002). Our review is plenary, however, when the court‟s denial was “based on the
    application of legal precepts.” Hook v. Ernst & Young, 
    28 F.3d 366
    , 370 (3d Cir. 1994).
    4
    Greene and his two co-defendants moved for a new trial on analogous grounds
    following their convictions on the counts from which these two firearms charges had
    been severed. Chief Judge Gomez, who presided over the extortion trial, held an
    evidentiary hearing and took sworn testimony. With the record complete, the parties
    declined to present additional testimony or argument relative to Greene‟s unique Rule 33
    motion. At the evidentiary hearing, Fredericks alleged he had been excluded in identical
    fashion on the morning of January 25, 2010. See United States v. Saldana, Crim. No.
    2009-32, 
    2010 U.S. Dist. LEXIS 75019
    , at *6 (D.V.I. July 25, 2010). Although
    Fredericks claimed to have been excluded from “jury selection,” the court found the
    record indicated he had probably been denied access only to “jury attendance,” an
    administrative undertaking performed by courtroom personnel prior to the judge being
    called to the bench during which jurors receive their Juror Numbers. 
    Id. at *17, 21
    . The
    court found no authority supporting an extension of the Sixth Amendment “to a non-
    judicial event preceding trial, such as jury attendance.” 
    Id. at *21
    . Similarly, Fredericks
    “guess[ed]” he had been permitted to enter the courtroom on January 20 after the
    completion of “jury selection.” Nevertheless, our conclusion that the partial closure was
    not of constitutional significance renders immaterial the factual question of whether
    Fredericks was inadvertently excluded from the voir dire on January 20.
    5
    CSOs are employed by private companies working under contract with the U.S.
    Marshal Service and are not part of the judiciary.
    4
    exclusion occurred. Greene placed no objection as to the alleged exclusion on the record
    during trial.6
    In his motion, Greene relied principally on Presley v. Georgia, --- U.S. ----, 
    130 S. Ct. 721
     (2010), a per curiam opinion handed down two days before the jury returned its
    verdict in this case. In Presley, the Supreme Court held the Sixth Amendment extends to
    the voir dire of prospective jurors and concluded a defendant‟s right to a public trial had
    been violated by the trial court‟s exclusion of his uncle from the proceeding. 
    Id. at 722, 724-25
    . Here, the trial judge wrote:
    The glaring, significant difference between Presley and the case sub judice
    is that in Presley, the trial judge excluded the public from the courtroom
    during jury selection. Here, the exclusion of the public from voir dire was
    undertaken, apparently unilaterally, by the court security staff at the St.
    Thomas, United States Virgin Islands Federal Courthouse. This
    distinguishing fact resolves the instant Motion. While it is regrettable that
    Greene‟s brother was excluded from the Courtroom during jury selection
    by the CSO, the CSO‟s exclusion of Fredericks cannot and should not be
    imputed to this Court. It is the Court‟s view that the Supreme Court did not
    intend the holding of Presley to be extended to unilateral actions taken by
    court security staff about which the trial judge was completely unaware.
    We thus perceive no error of constitutional proportions and thus no basis
    whatsoever to afford Greene a new trial premised upon this unfortunate, but
    de minimus, breach.
    The court expressed confidence court security officers would “no longer exclude the
    public from jury selection” following the two days of hearings conducted with respect to
    6
    The government styles Greene‟s failure to object a waiver forfeiting his right to a public
    trial. Because we find the partial closure did not amount to a constitutional violation, we
    need not decide whether Greene waived his Sixth Amendment rights.
    5
    the merits of these motions.7
    In general, the denial of a defendant‟s right to a public trial is a “structural
    error”—i.e. a defect “affecting the framework within which the trial proceeds”—
    requiring reversal irrespective of whether the defendant demonstrates the error prejudiced
    his substantial rights. See Arizona v. Fulminante, 
    499 U.S. 279
    , 310 (1991) (canvassing
    cases and delineating the scenarios in which structural errors have been recognized). “It
    does not necessarily follow, however, that every deprivation in a category considered to
    be „structural‟ constitutes a violation of the Constitution or requires reversal of the
    conviction, no matter how brief the deprivation or how trivial the proceedings that
    occurred during the period of deprivation.” Gibbons v. Savage, 
    555 F.3d 112
    , 120 (2d
    Cir. 2009), cert. denied, --- U.S. ----, 
    130 S. Ct. 61
     (2009). That is, “not every improper
    partial closure implicates [Sixth Amendment] concern[s].” Brown v. Kuhlmann, 
    142 F.3d 529
    , 536 (2d Cir. 1998); see also Bowden v. Keane, 
    237 F.3d 125
    , 129 (2d Cir. 2001)
    (explaining that a defendant‟s right to a public trial “is not trammeled, for example, by a
    trivial, inadvertent courtroom closure”); Braun v. Powell, 
    227 F.3d 908
    , 919 (7th Cir.
    2000) (holding the exclusion of one spectator from an entire trial “does not implicate the
    policy concerns that inform the Sixth Amendment‟s right to an open trial”).
    Whether a particular closure abridges a defendant‟s Sixth Amendment rights
    hinges on its potential to undermine the values advanced by the public trial guarantee,
    7
    Greene contends this was not an isolated incident. However, the court solicited
    testimony from court staff and court security officers during the evidentiary hearing and
    6
    which include (1) ensuring a fair trial; (2) reminding the government and the judge “of
    their responsibility to the accused and the importance of their functions”; (3) encouraging
    witnesses to come forward; and (4) discouraging perjury. Peterson v. Williams, 
    85 F.3d 39
    , 43 (2d Cir. 1996). In Peterson, for example, the Second Circuit held a closure that
    was “1) extremely short, 2) followed by a helpful summation, and 3) entirely inadvertent”
    did not, in that instance, violate a defendant‟s Sixth Amendment rights. 
    85 F.3d at 44
    .
    Additionally, “the exclusion of a family member or friend may, in rare circumstances . . .
    , not implicate the Sixth Amendment public trial guarantee.” Carson v. Fischer, 
    421 F.3d 83
    , 94 (2d Cir. 2005); see also United States v. Perry, 
    479 F.3d 885
    , 890-91 (D.C. Cir.
    2007) (finding a district court‟s exclusion of the defendant‟s son to be a trivial closure
    insufficient to raise constitutional concerns).
    Courts have continued to conduct triviality analyses in the wake of Presley’s
    holding that the Sixth Amendment extends to voir dire proceedings. In Barrows v.
    United States, 
    15 A.3d 673
    , 680-81 (D.C. 2011), the Court of Appeals for the District of
    Columbia affirmed a conviction after concluding a “brief closure of the courtroom during
    voir dire” had not “seriously compromised the fairness or integrity of [the defendant‟s]
    trial.” And in Kelly v. State, 
    6 A.3d 396
     (Md. Ct. Spec. App. 2010), the Maryland Court
    of Special Appeals considered the following factors determinative in holding a closure to
    have been de minimus:
    failed to discern a systemic flaw. See Saldana, 
    2010 U.S. Dist. LEXIS 75019
    , at *6-7, 30.
    7
    (1) the limited duration of the closure, two to three hours during voir dire;
    (2) that the closure did not encompass the entire proceedings of voir dire
    and jury selection, and that a significant portion of the proceedings during
    that time were not even audible to spectators in the courtroom; and (3) that
    the closure was a partial one [that encompassed only members of the
    defendant‟s family], and not a total exclusion of all spectators.”
    
    Id. at 411
    .
    Moreover, courts have placed considerable emphasis on the role of the trial judge
    in assessing whether a closure is of constitutional magnitude and have resisted ascribing
    to judges the unauthorized actions of courthouse personnel. The Tenth Circuit has held
    that a defendant may not mount a successful Sixth Amendment claim in the absence of
    “some affirmative act by the trial court meant to exclude persons from the courtroom.”
    United States v. Al-Smadi, 
    15 F.3d 153
    , 154 (10th Cir. 1994); see also 
    id. at 154-55
     (“The
    brief and inadvertent closing of the courthouse and hence the courtroom, unnoticed by
    any of the trial participants, did not violate the Sixth Amendment.”). The Fourth Circuit
    found a bailiff‟s temporary refusal to allow members of the public into the courtroom
    “entirely too trivial to amount to a constitutional deprivation” when it “existed for but a
    short time and was quickly changed by the Court, when advised of the action of the
    bailiff.” Snyder v. Coiner, 
    510 F.2d 224
    , 230 (4th Cir. 1975). By contrast, when a trial
    judge is initially unaware of a closure but subsequently ratifies actions taken by
    courthouse personnel to limit access to the courtroom, such “ex-post approval” is
    sufficient to trigger constitutional considerations. United States v. Smith, 
    426 F.3d 567
    ,
    572 (2d Cir. 2005).
    8
    Mere inadvertence does not invariably preclude the finding of a Sixth Amendment
    violation. See Owens v. United States, 
    483 F.3d 48
    , 63 (1st Cir. 2007) (“[E]ven if the
    courtroom was closed because of inattention by the judge, courts have expressed concern
    in the past where a court officer‟s unauthorized closure of a courtroom impeded public
    access.”). Nonetheless, courts of appeals have unfailingly examined whether the trial
    judge either initiated or ratified the closure in order to pinpoint to whom such
    inadvertence is attributable. For example, in Owens, a colloquy between the trial judge
    and a U.S. Marshal prior to jury selection revealed the judge‟s awareness that the
    courtroom would have to be cleared of spectators in order to ensure seating for the entire
    jury panel. 
    483 F.3d at 54
    . As prospective jurors were dismissed and seating became
    available, marshals continued to bar the defendant‟s family members from entering the
    courtroom. 
    Id.
     There, the First Circuit found the trial judge‟s passive role in perpetuating
    the closure did not absolve the court from its direct responsibility for the public being
    banished from the courtroom “for an entire day while jury selection proceeded.” 
    483 F.3d at 63
    .8
    Here, the closure was limited in both duration and scope and was therefore
    unlikely to jeopardize the aims served by the public trial guarantee. See, e.g., Peterson,
    8
    Walton v. Briley, 
    361 F.3d 431
    , 433 (7th Cir. 2004), to which Greene cites for the
    proposition that “[w]hether the closure was intentional or inadvertent is constitutionally
    irrelevant,” is similarly distinguishable. In Walton, the Seventh Circuit held a defendant‟s
    right to a public trial had been transgressed by a trial judge‟s decision to allow the
    prosecution to present its entire case during two late-evening sessions that took place
    after the courthouse had been closed and locked for the night. 
    Id. at 432
    .
    9
    
    85 F.3d at 43-44
    ; Braun, 
    227 F.3d at 919-20
    ; Kelly, 
    6 A.3d at 411
    . Unlike in Owens, the
    partial closure occurred unbeknownst to the trial judge. Unlike in Presley, in which the
    defendant immediately objected to the exclusion, see 
    130 S. Ct. at 722
    , Greene never
    raised an objection and was thus complicit in allowing the court‟s unawareness of the
    closure to persist. And, unlike in Smith, the closure was not subsequently ratified by any
    affirmative act of the court. Reasoning that Presley does not fundamentally alter the
    nature of the triviality inquiry, the District Court stated “the Supreme Court did not
    intend the holding of Presley to be extended to unilateral actions taken by court security
    staff about which the trial judge was completely unaware.” See also United States v.
    Agosto-Vega, 
    617 F.3d 541
    , 547-48 (1st Cir. 2010) (analogizing to Presley and focusing
    on the central role played by the trial judge in each matter in causing members of the
    public to be excluded from the voir dire); People v. Bui, 
    107 Cal. Rptr. 3d 585
    , 594 (Cal.
    Ct. App. 2010) (“We do not believe that Presley obviates consideration of the „de
    minimis‟ nature of a courtroom closure . . . .”). Therefore, the District Court properly
    concluded Greene did not suffer harm of constitutional dimension when a court security
    officer temporarily prevented his brother from entering the courtroom. Consequently, we
    will affirm the court‟s denial of Greene‟s motion for a new trial.
    B.
    Second, Greene contends the court abused its discretion in rejecting his request to
    instruct the jury that it could convict only if it found Greene was acting outside the scope
    10
    of his police duties while in possession of the guns.9 In general, “a defendant is entitled to
    an instruction as to any recognized defense for which there exists evidence sufficient for
    a reasonable jury to find in his favor.” Gov’t of the Virgin Islands v. Isaac, 
    50 F.3d 1175
    ,
    1180 (3d Cir. 1995) (internal quotation marks omitted). “A court errs in refusing a
    requested instruction only if the omitted instruction is correct, is not substantially covered
    by other instructions, and is so important that its omission prejudiced the defendant.”
    United States v. Davis, 
    183 F.3d 231
    , 250 (3d Cir. 1999). At bottom, we must determine
    “whether, viewed in light of the evidence, the charge as a whole fairly and adequately
    submits the issues in the case to the jury.” United States v. Zehrbach, 
    47 F.3d 1252
    , 1264
    (3d Cir. 1995) (internal quotation marks omitted).
    Here, the court properly instructed the jury on each the four essential elements the
    government was required to prove beyond a reasonable doubt in order to obtain a
    conviction under 
    18 U.S.C. §§ 922
    (k) and 924(a)(1)(B).10 The court elaborated on its
    rationale for denying Greene‟s requested instruction at a sidebar conference immediately
    following the jury charge:
    There‟s no statutory defense in this case. I think you have eloquently and
    appropriately argued that if he had the weapon in the course of his police
    work, legitimately, that that would not constitute a crime. That was the
    point of the government‟s presentation, that he was outside the protocols.
    We spent hours and hours in testimony on that. And to give the instruction,
    9
    We review a district court‟s refusal to give a requested jury instruction for abuse of
    discretion. United States v. Weatherly, 
    525 F.3d 265
    , 269 (3d Cir. 2008).
    10
    Under 
    18 U.S.C. § 922
    (k), it is unlawful “to possess or receive any firearm which has
    had the importer‟s or manufacturer‟s serial number removed, obliterated, or altered and
    has, at any time, been shipped or transported in interstate or foreign commerce.”
    11
    I think, tips the balance unnecessarily and unfairly in favor of the defense,
    and potentially directs a verdict for the defense. . . . [U]nless there was a
    statutory defense I could possibly give in that regard, you were not
    estopped from making the argument that he had [the firearms] pursuant to
    proper police work.
    Greene renewed his request prior to the jury being released for deliberations. Declining to
    rehash “each side‟s theory of the case,” the court once more rejected the request.
    We conclude the court did not abuse its discretion in denying Greene his proposed
    jury instruction. Notably, Greene does not contest the court‟s finding that no “recognized
    defense” exists as to which the jury should have been instructed. See Isaac, 
    50 F.3d at 1180
    . The court‟s language tracked the Third Circuit Model Jury Instructions, see Model
    Third Circuit Crim. Jury Instruction No. 6.18.922K, and Greene cites to no legal
    authority establishing possession within the lawful discharge of law enforcement duties
    as a viable defense to a charge under § 922(k). The court was not obligated to fashion an
    instruction with no basis in the law. See Davis, 
    183 F.3d at 250
     (explaining a court abuses
    its discretion only if the proposed instruction is “correct”). Consequently, because the
    instruction “fairly and adequately submit[ted] the issues in the case to the jury,” see
    Zehrbach, 
    47 F.3d at 1264
    , we will deny Greene‟s request to vacate his conviction on this
    ground.
    C.
    Next, Greene argues the District Court abused its discretion in excluding
    12
    testimony about his relationship with de Lugo.11 At trial, Greene testified he had placed
    the weapons in his backpack intending to surrender them to de Lugo for processing.
    When Greene‟s trial counsel inquired as to whether Greene “had occasion to turn over
    items to Corporal de Lugo in the past,” Greene answered in the affirmative, prompting
    the government to object. During a sidebar conference, the court instructed Greene‟s
    counsel to proffer the substance of the contemplated testimony as it pertained to Greene‟s
    previous encounters with de Lugo. Concluding Greene had failed to establish an adequate
    evidentiary foundation to demonstrate the testimony‟s relevance, the court sustained the
    objection.
    To prevail on appeal, Greene must demonstrate the district court‟s evidentiary
    ruling was “arbitrary, fanciful or clearly unreasonable.” Stecyk v. Bell Helicopter Textron,
    Inc., 
    295 F.3d 408
    , 412 (3d Cir. 2002) (internal quotation marks omitted). Quite
    conspicuously, Greene offers no legal support for his assertion that this specific
    evidentiary ruling constituted an abuse of the court‟s discretion under these governing
    standards. Greene maintains the exclusion of this testimony irreparably prejudiced his
    defense by preventing him from describing the “informal process” that purportedly
    permitted him to possess the guns without proper paperwork provided he turn them over
    to de Lugo within some unspecified timeframe. However, the court did not preclude him
    11
    We review a district court‟s decision “to admit or exclude evidence, if premised on a
    permissible view of the law, . . . for an abuse of discretion.” United States v. Sokolow, 
    91 F.3d 396
    , 402 (3d Cir. 1996).
    13
    from attempting to lay an appropriate foundation for this line of testimony nor from
    introducing evidence of alternative departmental procedures for handling firearms.
    We need only consider whether “no reasonable person would adopt the district
    court‟s view.” 
    Id.
     (internal quotation marks omitted). Employing this deferential standard
    of review, we conclude the court acted within its discretion in sustaining the
    government‟s objection. Thus, we will deny Greene‟s request to vacate his convictions on
    this evidentiary basis.
    D.
    Lastly, Greene contends the court conducted his sentencing hearing in a
    procedurally defective manner. See United States v. Levinson, 
    543 F.3d 190
    , 195 (3d Cir.
    2008) (explaining that our responsibility on appellate review is “to ensure that a
    substantively reasonable sentence has been imposed in a procedurally fair way”).12
    Specifically, in the course of evaluating the sentencing factors outlined in 
    18 U.S.C. § 3553
    (a), the court, on multiple occasions, referred to Greene as a “dirty” and “corrupt”
    officer. Greene contends the court‟s adjectival flourishes indicate his sentence was not
    imposed in accordance with the factors set forth in the sentencing guidelines. We
    disagree.
    12
    We review sentences for both procedural and substantive reasonableness under an
    abuse-of-discretion standard. Gall v. United States, 
    552 U.S. 38
    , 51 (2007). As the party
    challenging the sentence, Greene bears the burden of demonstrating unreasonableness.
    United States v. Tomko, 
    562 F.3d 558
    , 567 (3d Cir. 2009) (en banc).
    14
    Greene chiefly relies on United States v. Figueroa, 
    622 F.3d 739
    , 743 (7th Cir.
    2010), in which the Seventh Circuit vacated a sentence that fell squarely within the
    recommended guideline range after finding the district court‟s “extended discussion of
    topics that [were] both outside of the record and extraneous to any proper sentencing
    consideration” had tainted the procedural aspects of the defendant‟s sentencing. There,
    the sentencing court “digressed to discuss Figueroa‟s native Mexico, the immigration
    status of Figueroa and his sisters, and the conditions and laws in half a dozen other
    countries—not to mention unnecessary references to Hugo Chavez, Iranian terrorists, and
    Adolf Hitler‟s dog.” 
    Id. at 741
    . Unable to determine whether this gratuitous “litany of
    inflammatory remarks” prejudiced the defendant, the appellate court remanded for
    resentencing. 
    Id. at 744-45
    .
    Here, the District Court‟s remarks were neither incendiary nor tangential. Read in
    context, the remarks were germane to the court‟s application of the second sentencing
    factor, namely the need for the sentence imposed “to reflect the seriousness of the
    offense, to promote respect for the law, . . . to provide just punishment for the offense[,]
    [and] to afford adequate deterrence to criminal conduct.” See 
    18 U.S.C. § 3553
    (a)(2). The
    court cited “endemic police corruption” as a societal scourge and lamented that “[i]f
    those who are sworn to protect citizens fail to obey the law themselves, we have
    enormous trouble.” Rather than serving as “an exemplar of good behavior,” Greene
    instead had been, in the estimation of the District Judge, “a dirty cop” whose actions had
    undermined popular confidence in law enforcement. Concluding it was necessary to
    15
    impose a term of imprisonment in order to avoid “depreciat[ing] the gravity of this
    offense,” the court expressly crafted its sentence with an eye on deterring similar
    conduct. The court‟s comments were not prejudicial and did not deprive Greene of a
    procedurally fair sentencing.
    Having determined the court sentenced Greene in a procedurally sound fashion,
    we review the substantive reasonableness of Greene‟s sentence for an abuse of discretion
    and must affirm so long as the sentence “falls within the broad range of possible
    sentences that can be considered reasonable in light of the § 3553(a) factors.” United
    States v. Wise, 
    515 F.3d 207
    , 218 (3d Cir. 2008). The sentencing guidelines prescribed an
    imprisonment range of 27 to 33 months; the court sentenced Greene to 30 months. In so
    doing, the court rejected the government‟s recommendation that Greene be sentenced to
    the statutory maximum of five years imprisonment on each count to be served
    consecutively. According the trial court the measure of deference to which it is entitled,
    we are satisfied the sentence reflected a reasonable application of the § 3553(a) factors.
    See United States v. Tomko, 
    562 F.3d 558
    , 568 (3d Cir. 2009) (en banc) (“[I]f 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.”).
    Therefore, we will deny Greene‟s request to vacate and remand for resentencing.
    III.
    For the foregoing reasons, we will affirm the judgment of conviction and sentence.
    16
    

Document Info

Docket Number: 10-3267

Citation Numbers: 431 F. App'x 191

Judges: Ambro, Rendell, Scirica

Filed Date: 6/17/2011

Precedential Status: Non-Precedential

Modified Date: 8/3/2023

Authorities (30)

Owens v. United States , 483 F.3d 48 ( 2007 )

United States v. Agosto-Vega , 617 F.3d 541 ( 2010 )

Kareem Peterson v. Melvin Williams , 85 F.3d 39 ( 1996 )

Gibbons v. Savage , 555 F.3d 112 ( 2009 )

United States v. Zuhair I. Al-Smadi A/k/a, Sudgi Asad , 15 F.3d 153 ( 1994 )

Vernon Bowden v. John Keane, Superintendent, Woodbourne ... , 237 F.3d 125 ( 2001 )

No. 99-2030 , 295 F.3d 408 ( 2002 )

United States v. Craig B. Sokolow , 91 F.3d 396 ( 1996 )

United States v. Levinson , 543 F.3d 190 ( 2008 )

Debra v. Hook, an Individual v. Ernst & Young, a Partnership , 28 F.3d 366 ( 1994 )

planned-parenthood-of-central-new-jersey-herbert-holmes-md-david , 297 F.3d 253 ( 2002 )

Andre Brown v. Robert Kuhlmann, Superintendent of Sullivan ... , 142 F.3d 529 ( 1998 )

Uniko Carson v. Brian Fischer, Superintendent, Sing Sing ... , 421 F.3d 83 ( 2005 )

United States v. Wendell Smith , 426 F.3d 567 ( 2005 )

United States v. Vincent R. Davis , 183 F.3d 231 ( 1999 )

United States v. Eatherly , 525 F.3d 265 ( 2008 )

United States v. Theodore Joseph, United States of America ... , 996 F.2d 36 ( 1993 )

Government of the Virgin Islands v. Samuel Isaac , 50 F.3d 1175 ( 1995 )

UNITED STATES of America v. Darus H. ZEHRBACH, Appellant in ... , 47 F.3d 1252 ( 1995 )

United States v. Wise , 515 F.3d 207 ( 2008 )

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