2010 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

11-23-2010 

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w . v i l l a no v a . e du/thir dc ir c uit_2010/212NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 10

- 1187

____________ UNITED STATES OF AMERICA

v. RANDOLPH SCHNEIDER,

Appellant

____________ On Appe al from the United States District Court for the Middle District of Pennsylvania (D.C. No. 4

- 08

- cr - 00450

- 001 ) District Judge: Honorable James F

. McClure

____________ Submitted Pursuant to Third Circuit LAR 34.1(a)

November 17, 2010 Before: AMBRO, FISHE R and GREENBERG , Circuit Judges

.

(Filed: November 23, 2010 )

____________ OPINION OF THE COURT

____________ FISHER, Circuit Judge

. Appellant Randolph Schneider pled guilty and was convicted for the unlawful possession of child pornography, in violation of 18 U.S.C. § 2 252A(a)(5)(B). Schneider appeals from the judgment of sentence entered by the District Court. For the reasons
state d below, we will affirm.2 I. We write exclusively for the parties, who are familiar with the factual context and legal history of this case . Therefore, we will set forth only those facts necessary to our analysis. On March 18, 2009, Schneider pled guilty in the United States District Court for the Middle District of Pennsylvania to the charge of possession of a computer and compact discs wh ich contained child pornograp hy, in violation of 18 U.S.C. § 2252A(a)(5)(B). The District Court accepted his guilty plea and a Presentence Investigation Report (“PSR”) was prepared on May 4, 2009. Upon receiving the PSR, Schneider set forth several objec tions and, on August 18, 2009, an Addendum to the PSR was issued. On January 7, 2010, the District Court conducted a sentencing hearing. The District Court considered the nature and circumstances of the offense and noted that the Guideline range for the offense was fifty

- one to sixty

- three months. Additionally, the District Court considered the 18 U.S.C. § 3553(a) factors. Ultimately, the District Court sentenced Schneider to thirty

- six months‟ imprisonment, fifteen months below the Guideline range, as well a s ten years‟ supervised release

. On January 11, 2010, Schneider filed a timely notice of appeal of the District Court‟s judgment of sentence.
II. The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. We have appellate ju risdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).3

We review sentences for both procedural and substantive reasonableness under an abuse of discretion standard. See Gall v. United States , 552 U.S. 38, 51 (2007); United States v.
Wise , 515 F .3d 207, 217

- 18 (3d Cir. 2008).
III. On appeal, Schneider asserts that the District Court failed to “meaningfully” consider his argument regarding unwarranted sentence disparities under 18 U.S.C. § 3553(a)(6), resulting in an unreasonable sentence. 1 Spec ifically, Schneider argues that the District Court did not properly consider probationary sentences imposed on similarly situated defendants in other district courts. The government contends that the District Court properly considered both the Sentencing Guidelines and the 18 U.S.C. § 3553(a) factors, and imposed a reasonable sentence. When sentencing a defendant, a district court must un dertake three steps. First, a district court must properly and accurately calculate the defendant‟s Guideline range. United States v. Levinson , 543 F.3d 190, 194 (3d Cir. 2008). Second, a district court must “rule on any motions for departure and, if a motion is granted, state how the departure affects the Guidelines calculation. See id. at 195. Third, “after allowing the parties an opportunity for argument, the court must consider all of the § 3553(a) factors and determine the appropriate sentence to impose, which may vary from the sentencing range called for by the Guidelines.” Id

. (internal citations omitted).

1 This factor requires a district court to evaluate “the need to avo id unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6).4

We review sentences imposed for “reasonableness.” United States v. Lychock , 578 F.3d 214, 217 (3d Cir. 2009) (internal citation omitted). We begin our review by “„ensur[ing] that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence

– i ncluding an explanation for any deviation from the Guidelines range.‟” United States v. Tomko , 562 F.3d 558, 567 (3d Cir. 2009) (en banc) (quoting Gall , 552 U.S. at 51). If the district court‟s procedure is adequate, we “consider its substantive reasonab leness” based upon the totality of the circumstances. Id . “The 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).” United States v. Grier , 475 F.3d 556, 571 (3d Cir. 2007) (en banc) (citing United States v. Cooper , 437 F.3d 324, 329

- 32 (3d Cir. 2006)). “At both stages of our review, the party challenging the sentence has the burden of demonstrating unreasonableness.” Tomko , 562 F.3d at 567. Fi rst, Schneider alleges that the District Court failed to “meaningfully” consider probationary sentences imposed on similarly situated defendants in other district courts. In this case, the record clearly establishes that the District Court meaningfully co nsidered the need to avoid sentence disparities pursuant to 18 U.S.C. 3553(a)(6). The District Court noted that the Guidelines called for a sentence between fifty

- one and sixty

- three months. Then, the District Court listened to Schneider‟s argument reque sting a probationary sentence. The District Court asked several questions regarding the request5

because probation was a significant departure from the Guidelines. The District Court also considered a case involving a similarly situated defendant found gu ilty of comparable conduct. In that case, District Court imposed a sentence at the bottom of the Guidelines of fifty

- one months. The record reflects the District Court‟s meaningful consideration of the need to avoid unwarranted sentence disparities. Thu s, Schn eider‟s claim is unpersuasive

. Second, Schneider alleges that his sentence is substantively unreasonable. The pertinent inquiry is “whether the final sentence, wherever it may lie within the permissible statutory range, was premised upon appropria te and judicious consideration of the relevant factors.” United States v. Schweitzer , 454 F.3d 197, 204 (3d Cir. 2006). In this case, before imposing its sentence, the District Court properly considered the totality of the circumstances. After consideri ng the 3553(a) factors and other circumstances, the District Court determined that a sentence of thirty

- six months‟ imprisonment, fifteen months below the bottom range of the Guidelines, was appropriate. The District Court departed downward from the Guide line range because, in its view, Schneider presented a lower risk of recidivism. Therefore, we find that the District Court appropriately considered the relevant factors and the sentence was substantively reasonable. In sum, we hold that the District Cou rt did not commit an abuse of discretion because the sentence was procedurall y and substantively reasonable.
IV. For the foregoing reasons, we will affirm the District Court‟s sentence.