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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-2717

___________

UNITED STATES OF AMERICA

v.

JOSEPH BUSH,

Appellant.

___________

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania

(D.C. Crim. No. 2-08-cr-00309-001)

District Judge: Honorable Legrome D. Davis

___________

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

on October 5, 2010

Before: SCIRICA, FUENTES, and JORDAN, Circuit Judges.

(Opinion Filed: October 28, 2010)

OPINION OF THE COURT

FUENTES, Circuit Judge:

Joseph Bush pleaded guilty to two counts of bank robbery and was sentenced to a

Guidelines-range term of 160 months’ imprisonment. He appeals his sentence,
1

 The District Court had jurisdiction over this matter pursuant to 18 U.S.C. § 3231,

and we have jurisdiction pursuant to 28 U.S.C. § 1291.

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contending (1) that the District Court improperly focused upon his lengthy criminal

history in its sentencing decision, and (2) that it was an abuse of discretion for the District

Court not to impose a sentence below the Guidelines range. We will affirm.1

I.

Because we write primarily for the parties, we discuss the facts and history of this

case only to the extent necessary to resolve the issues Bush raises on appeal. On July 13,

2007, Bush entered a Commerce Bank in Philadelphia and handed the teller a note that

read, “I have two guns, will kill you and customers. Please give me all your money from

both drawers. No dye packs. I want twenties, tens, fives, and ones.” (App. 14.) The

teller gave the note back to Bush, who stated, “I [am] serious. Just do what the note

says.” (Id. at 14-15.) The teller gave Bush $2,400. Bush placed the money in a plastic

bag and fled. 

One month later, on August 13, 2007, Bush robbed the Trumark Financial Credit

Union (“Trumark”) in Philadelphia. Bush approached the teller and presented a note that

read, “[t]his is life or death, quiet,” and demanded that the teller hand over the money. 

(Id. at 15.) The teller gave Bush the money in the top drawer, which included a dye pack

and bait bills. Bush fled the bank and ran to the subway. Police later discovered the

exploded dye pack and a dye-stained Trumark deposit envelope in a restroom in the

subway concourse, and fingerprints on the envelope matched Bush’s. A still frame from
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Trumark’s security camera depicting the robber was published in the Philadelphia Daily

News, after which multiple anonymous calls to the Federal Bureau of Investigation

identified Bush as the perpetrator. Bush ultimately pled guilty to two counts of bank

robbery. See 18 U.S.C. § 2113(a). 

The Pre-Sentence Report (“PSR”) indicated that Bush was a career offender, that

he was entitled to a three-level reduction for acceptance of responsibility, that his offense

level was 29 and his criminal history category was VI, and that the Guidelines range for

his offenses was thus 151 to 188 months’ imprisonment. Bush does not challenge any

aspect of the PSR on appeal. At sentencing, the District Court reviewed Bush’s lengthy

criminal history in considerable detail and sentenced him to 160 months’ imprisonment. 

Bush filed this timely appeal.

II.

Bush advances two arguments on appeal. He first contends that the District Court

erred when it accounted for his extensive criminal history in explaining its sentencing

decision, calling the Court’s approach “vindictive[],” (Reply Br. at 15), and arguing that

the sentence “punishes him double for the same old crimes.” (Br. at 11.) Second, Bush

challenges the substantive reasonableness of his sentence, arguing that it was an abuse of

discretion for the District Court not to vary below the Guidelines and impose a 120-month

sentence. Neither argument is persuasive.

Our review of whether a district court abused its discretion in imposing a sentence

upon a criminal defendant is twofold. We first consider whether the sentencing court
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committed any procedural errors “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—including 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 v. United States, 552 U.S. 38, 51 (2007)). If the district court

committed no procedural error, we consider the sentence’s substantive reasonableness. A

sentence is substantively unreasonable only if “no reasonable sentencing court would

have imposed the same sentence on that particular defendant for the reasons the district

court provided.” Id. at 568.

Bush’s contention that the District Court focused improperly upon his criminal

history when sentencing him appears to be directed at the procedural reasonableness of

his sentence. In particular, Bush argues that his past crimes were already accounted for in

his criminal history category and that the District Court’s emphasis upon his past crimes

and his lack of remorse for prior offenses “punish[ed] him double” for “stale” offenses. 

(Br. at 7, 11.) The District Court did indeed focus on Bush’s extensive criminal history in

explaining its sentence, but we see no abuse of discretion in its decision given that the 18

U.S.C. § 3553(a) factors invite and indeed compel consideration of prior crimes. Bush

had an extensive history of criminal conduct which was characterized, as the District

Court explained, by a consistent and disturbing “willingness to use a weapon on total

strangers to satisfy whatever [Bush’s] needs are at the time.” (App. 32.) Moreover, as
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the District Court noted, the punishment imposed for these prior offenses appears to have

had little deterrent effect on Bush—he perpetrated the instant bank robberies less than a

year after serving a twenty-one-year sentence for a prior offense, and had pled guilty to at

least six prior robbery/burglary offenses since 1983. Bush’s history of undeterred violent

crime was, as the District Court explained, relevant to multiple § 3553(a) factors,

including the “history and characteristics of the defendant,” id. at § 3553(a)(1), the need

to “afford adequate deterrence to criminal conduct,” id. at § 3553(a)(2)(B), and the need

“to protect the public from further crimes of the defendant,” id. at § 3553(a)(2)(C). Bush

also went out of his way at the sentencing hearing to deny culpability for many of the

earlier crimes to which he had previously pled guilty, a fact that the sentencing judge

noted in assessing Bush’s character. “[C]onsideration of [such] information about the

defendant’s character and conduct at sentencing does not result in ‘punishment’ for any

offense other than the one of which the defendant was convicted.” Witte v. United States,

515 U.S. 389, 401 (1995). The District Court did not abuse its discretion in considering

Bush’s criminal history and his lack of remorse for his prior offenses when deciding

Bush’s sentence.

Nor are we persuaded by Bush’s challenge to the substantive reasonableness of his

sentence. Bush contends that it was an abuse of discretion for the District Court not to

vary below the Guidelines and sentence him to 120 months’ imprisonment. He identifies

many of the § 3553(a) factors that he believes would justify a below-Guidelines sentence

and asks that we remand to the District Court “with directions to depart downward from
2

 Although Bush characterizes his argument favoring a 120-month sentence as one

seeking a “departure,” he is in fact arguing in favor of a downward variance. “A

traditional sentencing departure diverges . . . from the originally calculated range for

reasons contemplated by the Guidelines themselves. In contrast, a variance diverges . . .

from the Guidelines, including any departures, based on an exercise of the court’s

discretion under § 3553(a).” United States v. Floyd, 499 F.3d 308, 311 (3d Cir. 2007).

(citations and internal quotation marks omitted). 

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the [G]uidelines and impose a sentence of 120 months.”2 (Br. at 16-17.) Notably, Bush

does not argue that the sentencing court failed to address any arguments raised with

regard to the § 3553(a) factors. Rather, he argues that we should reevaluate the § 3553(a)

factors de novo, supplanting our own judgment for the District Court’s. 

This argument is based upon a fundamental misunderstanding of our “highly

deferential” review of the substantive reasonableness of a district court’s sentencing

decision. Tomko, 562 F.3d at 568 (citation omitted). We do not “second guess” the

substance of a district court’s sentence based upon a wholesale reevaluation of the §

3553(a) factors. United States v. Levinson, 543 F.3d 190, 196 (3d Cir. 2008); accord

Gall, 552 U.S. at 51. Only if “no reasonable sentencing court would have imposed the

same sentence on that particular defendant for the reasons the district court provided” is a

sentence substantively unreasonable. Tomko, 562 F.3d at 568. Indeed, where there is no

procedural error and where the sentence is within the Guidelines range, we may presume

that the sentence was substantively reasonable. See Gall, 552 U.S. at 51. We certainly

see no abuse of discretion in the Guidelines-range sentence imposed here and we

therefore reject Bush’s challenge to the substantive reasonableness of his sentence.

III.
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For the foregoing reasons, we will affirm.