2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-24-2012

USA v. Leland Alexander

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-3457

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2012

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2012 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Leland Alexander" (2012). 2012 Decisions. Paper 672.

http://digitalcommons.law.villanova.edu/thirdcircuit_2012/672
1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________ 

No. 11-3457

_____________

 

UNITED STATES OF AMERICA

v.

LELAND ALEXANDER,

Appellant 

_____________

Appeal from the United States District Court

for the District of New Jersey

(D.C. Criminal No. 11-cr-75)

District Judge: Honorable Dennis M. Cavanaugh

_____________ 

Submitted Under Third Circuit LAR 34.1(a)

April 13, 2012

Before: McKEE, Chief Judge, HARDIMAN, Circuit Judge

and JONES, II, District Judge

(Opinion Filed: July 24, 2012)

 

_____________

OPINION OF THE COURT 

_____________

 



The Honorable C. Darnell Jones, II, District Judge for the United States District Court 

for the Eastern District of Pennsylvania, sitting by designation.
2

JONES, II, District Judge.

On August 25, 2011, Appellant Leland K. Alexander (“Alexander”) pleaded guilty 

to the charge of Felon in Possession of a Firearm, pursuant to 18 U.S.C. § 922(g)(1), and 

was sentenced to serve a 78-month term of imprisonment, followed by three years of 

supervised release. The sentencing court further ordered that the sentence be served 

consecutively to an existing state sentence. Alexander now appeals his judgment of 

sentence. For the reasons set forth below, that judgment will be affirmed.

I.

We write primarily for the benefit of the parties and thus recount only the essential 

facts and procedural history.

On or about September 10, 2008, Alexander was convicted in New Jersey‟s Union 

County Superior Court, of Possession of a Weapon for an Unlawful Purpose - namely, a 

paintball gun - in violation of New Jersey Statutes Annotated, Section 2C:39-4. (A44-

45). On or about August 27, 2010, Alexander knowingly possessed a top-break, sawedoff, double-barreled, 12-gauge shotgun and six shotgun shells, outside his residence 

located at 20 Shaw Avenue in Newark, New Jersey. (A44). At approximately 1 p.m. on 

that date, Alexander sold the shotgun and shells to an undercover agent with the Bureau 

of Alcohol, Tobacco, Firearms and Explosives in exchange for five hundred and forty 

dollars ($540.00). (A44; PSR ¶¶ 1, 9-10). 

On September 29, 2010, the sawed-off shotgun was tested by the Newark Police 

Ballistics Laboratory and was found to be operable and capable of being discharged. 

(PSR ¶ 12). Because Alexander had been previously convicted in New Jersey on a 
3

weapon possession charge, local authorities referred the matter to federal authorities and 

on January 26, 2011 – as Alexander was in custody on a state offense – a warrant was 

issued for his arrest. 

On April 25, 2011, Alexander pled guilty in the United States District Court for 

the District of New Jersey, to one charge of Felon in Possession of a Firearm, in violation 

of 18 U.S.C. § 922(g)(1). (A28-50). A sentencing hearing was held on August 25, 2011, 

at which time the court considered relevant statutory and guideline provisions, the PreSentence Investigation Report (“PSR”) prepared by the United States Department of 

Probation, Sentencing Memoranda submitted by both sides, and oral arguments. The 

court also heard information regarding Alexander‟s personal background, including his

aptitude for athletics and how his life went astray after a one-semester stint at the Berean 

Institute in Philadelphia. 

Alexander is the oldest of three brothers, all of whom lived with their mother in 

Newark, New Jersey at the time of Alexander‟s current offense. (A51; PSR ¶ 55). 

Alexander is also the father of four children from three different relationships. (PSR ¶¶ 

61-62). The children range in age from one to four and Alexander is currently in arrears 

on court-ordered child support payments for his oldest son. (PSR ¶ 61). 

Alexander‟s father left the family when Alexander was twelve years old. 

Alexander claims that because of the pressure he placed upon himself to contribute 

financially towards his struggling family, he made some poor choices which led him to 

where he is today. In support of a requested lenient sentence, Alexander claimed “if he 
4

had a positive male role model in his life, he would not have began [sic] to „look to the 

streets for a father figure‟ and things may have turned out differently.” (A51; PSR ¶ 58). 

It was Alexander‟s belief that by pleading guilty to the instant offense, he could 

“end his pattern of bad choices and contacts with the criminal justice system.” (A52).

Therefore, he asked the sentencing court to impose a sentence below the recommended 

guideline range of 70 to 87 months,1and requested that any sentence imposed be ordered 

to run concurrently with the state sentence he was serving at the time. (A55).

After considering all of the information before it, the sentencing court ultimately 

imposed a 78-month term of imprisonment, and ordered that it run consecutively to 

Alexander‟s imprisonment on any previous state or federal sentence. (A69). The court 

also imposed a three-year term of supervised release and a one hundred dollar ($100.00) 

special assessment fee, while waiving any potential fine. (A69).

The within appeal followed.

II

The issue presented for this Court‟s consideration is twofold. First, Alexander 

questions whether imposition of a 78-month sentence was “overly punitive.” Second, he 

asks us to assess whether the decision to run that sentence consecutively to a sentence 

currently being served, was “overly severe” and “even more unreasonable.” (Appellant 

Br. 2). As such, Alexander is not challenging the procedural aspect of his sentence; only 

the substantive reasonableness. (Appellant Br. 11). 

In conducting our assessment, we are mindful that . . . 

 

1

 Alexander sought a sentence of 60 months.
5

In addition to being procedurally reasonable, a sentence must also be 

substantively reasonable. For a sentence to be substantively reasonable, a 

district court must apply the § 3553(a) factors reasonably to the 

circumstances of the case. A sentence that falls within the recommended 

Guidelines range, while not presumptively reasonable, is less likely to be 

unreasonable than a sentence outside the range. The pertinent inquiry is 

“whether the final sentence, wherever it may lie within the permissible 

statutory range, was premised upon appropriate and judicious consideration 

of the relevant factors.” The party challenging the sentence bears the 

ultimate burden of proving its unreasonableness, and we accord great 

deference to a district court‟s choice of final sentence.

United States v. Lessner, 498 F.3d 185, 204 (3d Cir. 2007) (citations omitted).

This analysis shall be conducted by utilizing an abuse-of-discretion standard. Gall 

v. United States, 552 U.S. 38, 51 (2007). 

At the time of sentencing, Alexander did not seek a downward departure from the 

sentencing guidelines. (A61). However, he did seek a variance based upon “personal 

circumstances.” (A61-62). The crux of Alexander‟s argument to the sentencing court

was that an exception should be made for him because he was an extraordinary athlete 

but “things just sort of fell apart for him.” (A62). Alexander‟s counsel argued that his 

client felt the pressure of negative influences and wandered down the wrong path in an 

effort to help his mother and siblings, but that he was ready to change and had the support 

of his family to do so. (A63). Counsel also referenced Alexander‟s “young” age of 

twenty-three, and the fact that although he had “amassed a considerable number of 

[criminal history] points in a short period of time,” it was all just the result of “acting 

foolish and making poor choices” involving weapons and drugs. (A63-64). Accordingly, 

Alexander sought a 10-month variance from the lower end of the 70 to 87-month 
6

guideline recommendation, and requested that the sentence be served concurrently with a 

four-year sentence he was already serving on a state-imposed sentence. (A64, 66).

In response to Alexander‟s request, the government emphasized the seriousness of 

the offense for which he stood convicted, and Alexander‟s criminal history, which 

includes three felony convictions, with probation violations for each. (A67).

Upon careful consideration of these arguments - and after having determined the 

applicable guidelines range and confirming the non-existence of any motion for departure 

- the court set forth its consideration of all relevant “3553(a)” factors.

2

Exercising the 

discretion afforded to him, Judge Cavanaugh ultimately sentenced Alexander to a 78-

month term of imprisonment.

Alexander contends that despite his presentation of mitigating factors, the District 

Court “strictly adhered” to the guidelines and imposed an unreasonable sentence. 

(Appellant Br. 10). This contention is not borne out by the record, when viewed in toto. 

Moreover, we have held that a sentencing court‟s “failure to give mitigating factors the 

weight a defendant contends they deserve” does not necessarily “render[ ] the sentence 

unreasonable.” United States v. Bungar, 478 F.3d 540, 546 (3d Cir. 2007). 

Circumstances regarding upbringing, addiction, and parental status, do not necessarily 

 

2

These factors include consideration of: the nature and circumstances of the offense; the 

history and characteristics of the defendant; the need for the sentence to: reflect the 

seriousness of the offense, promote respect for the law, provide just punishment for the 

offense, afford adequate deterrence, protect the public from further crimes of the 

defendant, and provide the defendant with the educational or vocational training and 

medical care he needs; the kinds of sentences available, the sentencing ranges established 

by the guidelines; pertinent policy statements by the Sentencing Commission; the need to 

avoid sentencing disparities; and, the need to provide a victim with restitution. 18 U.S.C. 

§ 3553(a).
7

“suggest[ ] that [a defendant‟s] position is so unique that it makes the district court‟s 

refusal to vary his sentence downward „illogical, implausible, or without support in 

inferences that may be drawn from the facts in the record.‟” United States v. Treadwell, 

593 F.3d 990, 1011 (9th Cir. 2010) (quoting United States v. Hinkson, 585 F.3d 1247, 

1263 (9th Cir. 2009)), cert. denied, 131 S. Ct. 488 (2010).

The sentence imposed upon Alexander was within the lower half of the 

recommended guidelines range and cannot be deemed “overly punitive,” as he so states. 

Alexander is essentially asking us to re-weigh the evidence presented to the District 

Court, but our duty is not to second guess. United States v. Levinson, 543 F.3d 190, 196

(3d Cir. 2008). 

In assessing post-Booker3sentencings, we have determined that:

A sentence that falls within the guidelines range is more likely to be 

reasonable than one outside the guidelines range. There are no magic 

words that a district judge must invoke when sentencing, but the record 

should demonstrate that the court considered the § 3553(a) factors and any 

sentencing grounds properly raised by the parties which have recognized 

legal merit and factual support in the record.

United States v. Cooper, 437 F.3d 324, 332 (3d Cir. 2006). 

Further, “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.” United States v. Tomko, 

562 F.3d 558, 568 (3d Cir. 2009) (en banc).

 

3 United States v. Booker, 543 U.S. 220 (2005) (holding that the sentencing guidelines are 

advisory).
8

The record before us supports the sentence imposed, as the sentencing judge

unambiguously stated that he read defense counsel‟s “very fine memo” and considered all 

of the facts presented to him by both sides, including Alexander‟s “history and 

characteristics.” (A62, 66, 68).

4

 See Cooper, 437 F.3d at 329 (“The court need not 

discuss every argument made by a litigant if an argument is clearly without merit. Nor 

must a court discuss and make findings as to each of the § 3553(a) factors if the record 

makes clear the court took the factors into account in sentencing.”) (citations omitted). 

Having obviously considered the factors in this case, the court was within its discretion to 

impose a sentence that not only took into account Alexander‟s family history and 

upbringing (as presented by the defense), but also addressed other important factors, such 

as: Alexander‟s “very poor prior [criminal] record”; the fact that “gun use is rampant”

and the public needed to be protected; the fact that this particular offense was “very 

serious”; the need for adequate deterrence; and the fact that Alexander had already 

squandered opportunities for rehabilitation from prior convictions.

5,6

(A68). 

Accordingly, it is evident that “particular circumstances of the case have been given 

meaningful consideration within the parameters of § 3553(a).” Levinson, 543 F.3d at 

 

4 As such, Alexander‟s statement that “[t]he district court failed to adequately review the 

specifics of that [criminal] record” is unfounded. (Appellant Br. 16).

5

 Alexander‟s reliance on United States v. Olhovsky, 562 F. 3d 530, 552 (3d Cir. 2009) 

for the proposition that “a court‟s distaste for a particular offense cannot drive a 

sentence,” is misplaced. The nature of the sentencing court‟s statements herein is wholly 

distinguishable from those at issue in Olhovsky. Further, the record clearly demonstrates 

that the sentencing court‟s concern regarding rampant gun use was not the sole reason for 

the sentence imposed in this case. 

6 Alexander‟s statement that “[h]aving already served a significant period in jail by the 

time he was sentenced, it follows that the punitive and deterrent aspects of sentencing 

were already taking effect” is belied by his own past record. (Appellant Br. 17).
9

195. Moreover, nothing in the record indicates that the sentencing judge refused to vary 

from the low end of the guidelines range for an improper reason. United States v. Rome,

384 F. App‟x 135, 141 (3d Cir. 2010) (non-precedential) (noting that absent any support 

from the record, an appellant‟s mere argument that a sentence is “overly punitive” does 

not demonstrate an abuse of discretion).7See also Cooper. 437 F.2d at 331 (“[I]t is less 

likely that a within-guidelines sentence, as opposed to an outside-guidelines sentence, 

will be unreasonable. The advisory guidelines range is itself one of the § 3553(a) factors, 

18 U.S.C. § 3553(a)(4), and continues to play an integral part in sentencing decisions.”).

Accordingly, Alexander‟s argument that the court‟s imposition of a 78-month term 

of imprisonment was “overly punitive and therefore substantively unreasonable,” is 

without merit.

This Court now turns to the merits of Alexander‟s argument that the sentencing 

court improperly imposed a consecutive sentence. The same is unfounded.8 At the time 

of the instant offense, Alexander was serving a state sentence, therefore the following 

statutory provision applies:

If a term of imprisonment is imposed on a defendant who is already subject 

to an undischarged term of imprisonment, the terms may run concurrently 

 

7

Similar to the instant case, the sentencing court in Rome was faced with the argument 

that the recommended sentencing guideline range was “too long for what [Rome saw] as 

low-level drug offenses.” Id. at 141. However, we found that the sentencing judge‟s 

“concern about Rome‟s relative youth, his repeat offenses, his continued failure to 

comply with the conditions of his supervised release, and the break he got from Judge 

Bassler on the previous drug violation,” as well as her consideration of general deterrence 

and “the message that [she] send[s] to the community,” all suggested that she was not 

sentencing Rome within the recommended range for improper reasons. Id.

8 Notably, Alexander provides no legal authority for this argument.
10

or consecutively, except that the terms may not run consecutively for an 

attempt and for another offense that was the sole objective of the attempt.

18 U.S.C. § 3584(a). 

Additionally, “[t]he court, in determining whether the terms imposed are to be 

ordered to run concurrently or consecutively, shall consider, as to each offense for which 

a term of imprisonment is being imposed, the factors set forth in section 3553(a).” 18 

U.S.C. § 3584(b). 

The guidelines mirror this precept, providing that under circumstances such as 

those involved herein, “the sentence for the instant offense may be imposed to run 

concurrently, partially concurrently, or consecutively to the prior undischarged term of 

imprisonment to achieve a reasonable punishment for the instant offense.” U.S.S.G. § 

5G1.3(c). 

The sentencing court in this case found in pertinent part that Alexander “has[,] on 

a number of occasions[,] been placed on probation, and he hasn‟t done well with it. He‟s 

been in trouble on numerous occasions, and apparently, even though he‟s been punished 

on some of those occasions, he hasn‟t learned from any of that.” (A68). Undoubtedly, 

the court was deeply dissatisfied with Alexander‟s increasingly apparent tendency 

towards recidivism and when the decision was made to impose a consecutive sentence, 

“[n]othing in the language of [section 5G1.3(c)] or its Commentary require[d] [the]

district court[ ] to make specific findings with respect to any or all of the factors listed in 

the Commentary or [18 U.S.C.] § 3553(a).” United States v. Saintville, 218 F.3d 246, 

249 (3d Cir. 2000) (quoting United States v. Velasquez, 136 F.3d 921, 924 (2d Cir. 
11

1998)). Mindful that “the trial court [is] in the best position to determine the appropriate 

sentence in light of the particular circumstances of the case,” we find no abuse of 

discretion. Cooper, 437 F.3d at 330.

III

In view of the foregoing, we affirm the District Court‟s judgment of sentence.