2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-1-2010

USA v. Rashon Alexander

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-2357

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Recommended Citation

"USA v. Rashon Alexander" (2010). 2010 Decisions. Paper 1051.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 09-2357

____________

UNITED STATES OF AMERICA

v.

RASHON ALEXANDER, 

a/k/a Boog

 Rashon Alexander,

 Appellant

____________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 06-cr-00891)

District Judge: Honorable Katharine S. Hayden

____________

Submitted Under Third Circuit LAR 34.1(a)

July 1, 2010

Before: SLOVITER, BARRY and HARDIMAN, Circuit Judges.

(Filed: July 1, 2010)

____________

OPINION OF THE COURT

____________
 Alexander claims the District Court erred by not using the 2006 version of the 1

Guidelines, which was current at the time of his offense. Because we reach the same

conclusion regardless of which version of the Guidelines is used, we will assume,

arguendo, that Alexander is correct in this regard.

2

HARDIMAN, Circuit Judge.

Pursuant to a written agreement, Rashon Alexander pleaded guilty to one count of

possessing a firearm after being convicted of a felony, in violation of 18 U.S.C.

§ 922(g)(1), and was sentenced to 84 months imprisonment. Alexander appeals his

judgment of sentence, contending that the District Court incorrectly computed his

criminal history category and imposed a procedurally and substantively unreasonable

sentence. We will affirm.

I.

Because we write for the parties, we recount only the essential facts and procedural

history.

Consistent with the United States Sentencing Guidelines (USSG), the District

Court calculated Alexander’s offense level as 21 and his criminal history category as VI,

which yielded an advisory Guidelines range of 77 to 96 months imprisonment. On 1

appeal, Alexander claims his criminal history category calculation was incorrect because

the District Court did not group together his three prior sentences for possessing a

controlled dangerous substance within 1000 feet of school property, in violation of New
3

Jersey law. The District Court assigned three criminal history points to each of these

offenses, which accounted for nine of Alexander’s 17 criminal history points.

According to USSG § 4A1.2(a)(2), in computing a defendant’s criminal history,

“[p]rior sentences imposed in related cases are to be treated as one sentence.” Application

Note 3 to § 4A1.2 elaborates further:

Prior sentences are not considered related if they were for offenses that

were separated by an intervening arrest (i.e., the defendant is arrested for

the first offense prior to committing the second offense). Otherwise, prior

sentences are considered related if they resulted from offenses that (A)

occurred on the same occasion, (B) were part of a single common scheme

or plan, or (C) were consolidated for trial or sentencing.

In support of his argument that his three possession sentences should have been grouped

as one, Alexander notes that he received a single sentence for all three offenses. Had the

District Court grouped Alexander’s offenses, it would have reduced his criminal history

score to 11, and his criminal history category to V, which would have resulted in an

advisory sentencing range of 70 to 87 months. We review de novo the District Court’s

interpretations of the Sentencing Guidelines, United States v. Pojilenko, 416 F.3d 243,

246 (3d Cir. 2005), but review the District Court’s findings of fact only for clear error,

United States v. Wise, 515 F.3d 207, 217 (3d Cir. 2008).

Alexander’s argument fails because, as the District Court found, his three

possession offenses were separated by intervening arrests. Alexander committed the first

possession offense on January 4, 2000, and was arrested that same day. He was released

on bond, but committed the same offense the next day, January 5, and was re-arrested. 
4

After being released a second time, he committed the third offense on March 21, 2000. 

Thus Alexander plainly was “arrested for the first offense prior to committing the second

offense,” and for the second offense before committing the third. Under Application

Note 3, the District Court was not permitted to treat these consolidated sentences as

“related.” Accordingly, the District Court committed no error when it decided not to

group these three offenses.

II.

Alexander also claims his sentence was procedurally and substantively

unreasonable, arguing that the District Court erred by: (1) failing to consider his

mitigating circumstances and the factors enumerated in 18 U.S.C. § 3553(a); and (2)

refusing to reduce his sentence to reflect those circumstances and factors. As the

Government points out, however, Alexander is precluded from raising these arguments by

the appellate waiver in his plea agreement. We have previously stated:

We will decline to exercise our jurisdiction to review the merits of [a

defendant’s] appeal if we conclude (1) that the issues he pursues on appeal

fall within the scope of his appellate waiver and (2) that he knowingly and

voluntarily agreed to the appellate waiver, unless (3) enforcing the waiver

would work a miscarriage of justice.

United States v. Corso, 549 F.3d 921, 927 (3d Cir. 2008). Here, Alexander “agree[d] that

a sentence within the Guidelines range that results from the agreed total Guidelines

offense level of 21 is reasonable,” and “voluntarily waive[d] . . . the right to file any

appeal . . . which challenges the sentence imposed by the sentencing court if that sentence
 The plea agreement does not bar Alexander’s challenge to the District Court’s 2

calculation of his criminal history category, because both parties expressly reserved the

right to appeal that determination. The plea agreement is clear, however, that once

Alexander’s criminal history category is determined, he may not appeal his sentence if it

falls within the range dictated by that category and an offense level of 21. The District

Court fully explained this to Alexander at his plea hearing.

5

falls within or below the Guidelines range that results from the agreed total Guidelines

offense level of 21.” Because the District Court found that Alexander’s offense level 2

was 21 and sentenced him within the resulting Guidelines range, Alexander’s attack on

the reasonableness of that sentence falls squarely within the appellate waiver. Alexander

attempts neither to impugn the voluntariness of his waiver nor to argue that its

enforcement would result in a miscarriage of justice. Accordingly, we will not exercise

jurisdiction over this aspect of Alexander’s appeal.

For the foregoing reasons, we will affirm Alexander’s judgment of sentence.