2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-3-2014

USA v. John Rundle

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-4538

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Recommended Citation

"USA v. John Rundle" (2014). 2014 Decisions. Paper 1035.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 13-4538

_____________

UNITED STATES OF AMERICA

v.

JOHN RUNDLE,

Appellant

_____________

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

(D.C. Cr. No. 3-03-cr-00032-001)

District Judge: Honorable Edwin M. Kosik

______________

Submitted Under Third Circuit L.A.R. 34.1(a)

September 11, 2014

______________

Before: RENDELL, GREENAWAY, JR., and SLOVITER, Circuit Judges.

(Opinion Filed: October 3, 2014)

______________

OPINION

______________
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GREENAWAY, JR., Circuit Judge.

John Rundle appeals his sentence following the revocation of his supervised 

release, arguing that the sentence was procedurally unreasonable because the District 

Court failed to give proper consideration to the relevant factors set forth in 18 U.S.C. § 

3553(a), as required by 18 U.S.C. § 3583(e), and did not explain its variance above the 

advisory Guidelines range. Because the District Court committed procedural error in 

imposing its sentence, we will vacate the sentence and remand for re-sentencing. 

I. Facts and Procedural History

We write primarily for the benefit of the parties and recount only the facts 

essential to our discussion.

In May 2003, Rundle pled guilty to conspiracy to distribute and possess with 

intent to distribute more than 100 kilograms of marijuana and more than 500 grams of 

methamphetamine. The District Court sentenced Rundle in June 2008 to a term of 

imprisonment of 36 months, five years of supervised release, and a $100 assessment. 

After he was released from prison, Rundle was arrested and detained on a warrant 

for violating the conditions of his supervised release in October 2013. A “dispositional 

report” was prepared by the probation office in advance of a hearing on the petition for 

revocation of supervised release. The report stated that Rundle was charged with Grade 

C violations, with a Criminal History Category I, and that pursuant to U.S.S.G. §

7B1.4(a), the appropriate Guidelines range was three to nine months of imprisonment. 

A revocation of supervised release hearing occurred on November 14, 2013. 
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During the hearing, Rundle admitted to violating five conditions of supervised release, 

including unlawfully possessing and using a controlled substance; associating with 

known criminals; and failing to comply with reporting, drug treatment, and other 

requirements. The parties agreed on the applicable Guidelines range, as recommended by 

the dispositional report. 

The District Court said:

The disappointing thing about this case and Mr. 

Rundle is that the Court did give him consideration, as did the 

Government, and we exceeded that consideration because we 

recognized that there is intelligence associated with the 

Defendant and that his life could change for the better. It has 

in many personal ways changed for the better, you’re very 

responsibly employed, you’re now associating with a woman, 

which is very good for you, and I hope also very good for her, 

and you’re discharging your responsibility as a father. Those 

are all pluses. Anybody who suffers from an addiction has to 

be given consideration if they slip, and you’ve slipped.

By the same token, you were, along the lines, given 

opportunities to correct the condition that caused you to slip, 

but it didn’t accomplish anything, and that’s the only reason 

you’re here today. Importantly is that you work and you 

follow orders in your job, and, apparently, you’re doing a 

good job where you were employed. But you weren’t 

following orders, as far as this Court’s sentence or the 

behavior that was expected of you, when you were released 

from prison. You flaunted that authority. It makes it more 

difficult in a case like yours to impose a sentence.

. . .

So we have considered the statements of all the parties 

and the information contained in the violation petition and the 

dispositional report, and we find that the Defendant has 

violated the terms and conditions of his supervised release, 
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which he admits, and the term of supervised release is 

revoked. Further, the Court has determined that an upward 

departure is warranted.

And pursuant to the Sentencing Reform Act and in 

view of the considerations expressed in 18 U.S.C. 3553(a), 

which takes into account the departures, it is the Judgment of 

the Court that the Defendant is committed to the custody of 

the Bureau of Prisons to be imprisoned for a term of 12 

months.

App. 107-09.

The District Court did not make any findings as to the applicable advisory 

Guidelines range. The District Court also did not disclose the reason it imposed a 

sentence that was tantamount to a variance above the advisory Guidelines range.

1

 

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 18 U.S.C. § 3231, and we have 

jurisdiction under 18 U.S.C. § 3742(a)(1) and 28 U.S.C. § 1291. We review the 

procedural reasonableness of a sentence following revocation of supervised release for 

abuse of discretion. United States v. Doe, 617 F.3d 766, 769 (3d Cir. 2010). However, 

because Rundle did not object at sentencing to the District Court’s failure to calculate the 

Guidelines range, or to the District Court’s failure to explicitly address the upward 

departure, we will review the procedural reasonableness of his sentence for plain error. 

 

1 Although the District Court termed the variance an “upward departure,” it was 

actually an upward variance, since the District Court’s decision was not based on a 

specific Guidelines departure provision, but rather was a discretionary change. See 

United States v. Brown, 578 F.3d 221, 225-226 (3d Cir. 2009).
5

See Fed. R. Crim. P. 52(b) (“A plain error that affects substantial rights may be 

considered even though it was not brought to the court’s attention.”); United States v. 

Flores-Mejia, 759 F.3d 253, 254-255 (3d Cir. 2014) (en banc). Under this standard, we 

consider whether: (1) there was an error; (2) the error was “plain”; (3) the error affects 

substantial rights – ordinarily, whether the error was prejudicial; and (4) the error 

“seriously affects the fairness, integrity, or public reputation of judicial proceedings.” 

United States v. Olano, 507 U.S. 725, 732 (1993) (internal citations and quotations marks 

omitted). 

In the revocation context, 18 U.S.C. § 3583(e) enumerates the relevant § 3553(a) 

factors that the district court must consider when resentencing the defendant. 18 U.S.C. § 

3583(e). To satisfy the procedural requirements in imposing a sentence, “[a] sentencing 

court must (1) calculate the advisory Guidelines range, (2) formally rule on any departure 

motions and state how those rulings affect the advisory range, and (3) exercise its 

discretion pursuant to the factors set forth in § 3553(a).” United States v. Clark, 726 F.3d 

496, 500 (3d Cir. 2013). While a district court “need not discuss and make findings as to 

each of the § 3553(a) factors,” the district court must provide some statements that enable

us to “understand the rationale by which [the] district court reache[d] a final sentence.” 

Id. at 502 (alterations in original) (internal quotation marks omitted). 

III. Analysis

Rundle makes two claims of procedural error. He contends that the sentence 

imposed was procedurally unreasonable because the District Court (1) failed to follow the 
6

proper three-step sentencing procedure, and (2) did not explain why it varied above the 

Guidelines range through meaningful consideration of the § 3553(a) factors. We begin 

by addressing Rundle’s second claim because we believe it is the more problematic issue.

Rundle contends that the District Court failed to explain why it varied above the 

advisory Guidelines range and could have been more thorough in its discussion of the § 

3553(a) factors. Section 3553(a) directs a sentencing court to consider, among other 

things, “the nature and circumstances of the offense and the history and characteristics of 

the defendant,” as well as the need for the sentence to reflect the seriousness of the 

offense, promote respect for the law, provide just punishment, deter criminal conduct, 

protect the public from recidivism, and provide the defendant with necessary training or 

medical care. 18 U.S.C. § 3553(a)(1), (2). Rundle argues that the District Court gave no 

meaningful consideration to the factors. 

After careful review of the record, we conclude that the District Court gave 

meaningful consideration only to the first § 3553(a) factor regarding “the nature and 

circumstances of the offense and the history and characteristics of the defendant.” See id. 

Here, the District Court did note that Rundle “flaunted [the Court’s] authority,” but 

otherwise limited its discussion to Rundle’s addiction, employment status, and familial 

support. App. 108. In Clark, we vacated a sentence following revocation of supervised 

release where the district court “focused its § 3553(a) discussion on § 3553(a)(1),” but 

thereafter “merely enumerated the remaining § 3553(a) factors.” Clark, 726 F.3d at 502-

03. As in Clark, the District Court here gave short shrift to the remaining § 3553(a) 
7

factors, leaving us unable to “determine, from the record before us, that the court 

reasonably applied those factors to the circumstance[s] of the case.” Id. at 503 (internal 

quotation marks omitted). 

For the same reasons, we are unable to review the reasonableness of a sentence 

that varies above the advisory Guidelines range. True, a court need not address every 

argument made at sentencing or every piece of evidence submitted, so long as the record 

is clear that it took into account the § 3553(a) factors. United States v. Kulick, 629 F.3d 

165, 176 (3d Cir. 2010). However, the lack of a substantive discussion of the other 

factors and a failure to justify the upward variance is particularly harmful here given that 

the District Court did not calculate and state the applicable Guidelines range on the 

record. 

With respect to his first claim of procedural error, Rundle is correct that the 

District Court never formally calculated the applicable Guidelines range. This is contrary 

to the three-step procedural requirement for imposing a sentence referenced above. See 

Clark, 726 F.3d at 500. Nonetheless, the court did note during the sentencing hearing 

that it had a copy of the violation petition and the dispositional report. During the

hearing, the parties agreed on the Guidelines range, as recommended by the dispositional

report. Moreover, in his presentation to the court, defense counsel requested that the 

court “impose the sentence at the low end of the guidelines.” App. 98. On appeal, 

Rundle makes no claim that the court miscalculated the Guidelines range. In view of the 

parties’ complete agreement in these matters, the District Court’s failure to explicitly 
8

calculate the Guidelines range was harmless error. See United States v. Langford, 516 

F.3d 205, 215 (3d Cir. 2008) (“For the error to be harmless, it must be clear that the error 

did not affect the district court’s selection of the sentence imposed.”). Rundle’s claim 

must fail. 

Nonetheless, because the District Court did not give meaningful consideration to 

the § 3553(a) factors and did not explain why it varied above the recommended 

Guidelines range, we conclude that the District Court imposed a procedurally 

unreasonable sentence. United States v. Friedman, 658 F.3d 342, 360 (3d Cir. 2011) (a 

sentence is procedurally unreasonable when a district court fails to adequately explain the 

sentence imposed). We are left “unable to review the procedural . . . bases of the 

sentence[, which] is an error that is plain, that affects the substantial rights of the parties, 

and that could seriously affect the fairness, integrity or public reputation of judicial 

proceedings.” United States v. Fumo, 655 F.3d 288, 309 (3d Cir. 2011) (internal 

quotation marks and citation omitted). We will require upon remand that the District 

Court expound upon its sentencing decision, specifically explaining the reasons for its 

variance and reflecting a meaningful consideration of the relevant § 3553(a) factors.

IV. Conclusion

For the foregoing reasons, we will vacate the sentence of the District Court and 

remand for further proceedings consistent with this Opinion.