2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-16-2012

USA v. Harold Palmer

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-2450

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Recommended Citation

"USA v. Harold Palmer" (2012). 2012 Decisions. Paper 990.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-2450

_____________

UNITED STATES OF AMERICA

v.

HAROLD PALMER,

Appellant

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 10-312-01)

District Judge: Hon. Berle M. Schiller

Submitted Pursuant to Third Circuit LAR 34.1(a)

May 15, 2012

Before: SMITH, FISHER, and GARTH, Circuit Judges.

(Filed: May 16, 2012)

____________

OPINION 

____________

GARTH, Circuit Judge.

After a jury trial, appellant Harold Palmer was convicted of extortion under color 

of official right and making a false statement to a federal agent. He was sentenced to 18 

months‟ incarceration, a period of supervised release, and a special assessment. Palmer 

now appeals, challenging his sentence as procedurally unreasonable. We hold that the 
2

District Court committed no error at Palmer‟s sentencing. Accordingly, we will affirm 

Palmer‟s sentence.

I. 

We write principally for the benefit of the parties and recite only the facts essential 

to our disposition.

Prior to March 2010, Palmer participated in a Department of Homeland Security 

investigation of Saman Salem, an individual with whom he was acquainted. Salem 

operated an illegal business where he collected money in exchange for assisting 

individuals with obtaining fraudulent driver‟s licenses and other documents from the 

Pennsylvania Department of Transportation. 

Palmer worked as a driver‟s license examiner, and Salem paid him to assist in 

obtaining these documents. In the course of that investigation, Palmer gave statements to 

various investigating officials and agreed to wear a microphone in order to electronically 

record conversations with Salem. 

In March 2010, Palmer ended his cooperation with the investigation. On March 

15, 2010, after ending his cooperation, Palmer was arrested on a warrant and charged 

with extortion under color of official right, making a false statement to a federal agent, 

and conspiracy to illegally produce Pennsylvania driver‟s licenses.

A four day jury trial followed, at which Palmer was acquitted of the conspiracy 

charge and convicted of the remaining charges on December 8, 2010. Palmer did not file 
3

any post-trial motions.1 The federal sentencing guidelines details an undisputed advisory 

range of 33 to 41 months for Palmer‟s convictions. On May 19, 2011, the District Court 

held a sentencing proceeding to determine Palmer‟s sentence. 

Palmer‟s counsel presented various responses to some of the claims the 

government had made in its sentencing memorandum. At one point, when Palmer‟s 

counsel was discussing the amount of money Salem allegedly paid Palmer, she 

acknowledged that her present line of argument was “probably not my primary 

argument,” the District Court inquired, “[w]hat is your primary argument?” Palmer‟s 

counsel replied by responding to different claims in the government‟s memorandum. The 

District Court judge allowed her to continue in that vein for some time before asking, 

“[w]hat is your proposal for me?” Palmer‟s counsel responded by continuing to address 

various claims in the government‟s memorandum. The District Court judge then 

interrupted her for a third time, asking, “[w]hat do you want me to do?” Palmer‟s 

counsel responded “I want you to put him on probation, Judge,” whereafter the District 

Court judge thanked counsel for her argument and directed her to sit. The District Court 

judge then discussed the appropriate sentence with counsel for the government.

At the conclusion of the sentencing proceeding, Palmer was sentenced to eighteen 

months‟ incarceration for each conviction, to be served concurrently, followed by three 

years of supervised release to be served concurrently on each count and was ordered to 

pay a special assessment of $200. Palmer timely appealed his sentence.

II.

 

1

Palmer does not challenge either conviction on the present appeal.
4

We have jurisdiction over Palmer‟s appeal of his sentence pursuant to 28 U.S.C. § 

1291 and 18 U.S.C. § 3742. Although procedural errors at sentencing are generally 

subject to review for abuse of discretion, see Gall v. United States, 552 U.S. 38, 49 

(2007), when the error is not raised before the District Court, our review is for plain error. 

United States v. Parker, 462 F.3d 273, 278 (3d Cir. 2006). 

Palmer does not claim that he raised any objection to the alleged error before the 

District Court, and we therefore review his claim only for plain error. To satisfy the plain 

error standard, the error below must affect substantial rights and must be “„clear‟ or 

„obvious.‟ In most cases, an error affects substantial rights if it is prejudicial. . . When 

such an error exists, [we] have the authority to order correction, but [are] not required to 

do so. We will exercise our discretion and vacate the sentence if the plain error affecting 

substantial rights also seriously affects the fairness, integrity, or public reputation of 

judicial proceedings.” United States v. Evans, 155 F.3d 245, 251 (3d Cir. 1998) (internal 

quotation marks and citations omitted).

III.

Palmer raises a single claim on appeal. Specifically, he claims that the trial court 

committed reversible error in not allowing his counsel to finish her intended presentation 

at his sentencing. Palmer‟s contention amounts to an argument that his sentence was 

procedurally unreasonable because his counsel‟s truncated presentation prevented the 

District Court from being able to consider all of the necessary 18 U.S.C. § 3553(a) factors 

in setting his sentence. 
5

For a sentence to be procedurally reasonable, “the sentencing court must give 

rational and meaningful consideration to the relevant § 3553(a) factors.” United States v. 

Young, 634 F.3d 233, 237 (3d Cir. 2011) (quotation marks omitted). Further, a sentence 

is procedurally unreasonable if the sentencing authority fails “to adequately explain the 

chosen sentence - including an explanation for any deviation from the Guidelines range.” 

Gall v. U.S., 552 U.S. 38, 51 (2007).

Federal Rule of Criminal Procedure 32(i)(4)(A) provides that before the 

imposition of a sentence, the District Court must: 1) provide the defendant‟s counsel with 

an opportunity to speak on behalf of the defendant; 2) address the defendant personally 

and give the defendant the chance to speak if he desires to do so; and 3) provide the 

government with an equal opportunity to speak as that which the court provided to the 

defendant‟s counsel. Palmer claims that the District Court failed to provide his counsel 

with adequate opportunity to speak on his behalf as required by this Rule, and that in so 

doing, did not allow his counsel “to comment on matters relating to an appropriate 

sentence.” Irizarry v. United States, 553 U.S. 708, 715 (2008) (quoting Fed. R. Crim. P. 

32(i)(1)(C)) (internal quotation marks omitted). We cannot agree.

Although the District Court undeniably shortened the argument of Palmer‟s 

counsel, that fact alone does not constitute procedural error. As this Court has previously 

articulated, a defendant is entitled to his counsel having a “meaningful opportunity” to 

comment on matters relevant to sentencing. See United States v. Nappi, 243 F.3d 758, 

764 (3d Cir. 2001) (addressing the opportunity defense counsel must be given to 

comment on a presentence report).
6

In the present case, as the exchange between the District Court and Palmer‟s 

counsel makes clear, the District Court indicated that it had heard sufficient argument on 

whatever factors it considered to be relevant to Palmer‟s sentence. Palmer has not 

alleged that the District Court relied on any impermissible factors or any erroneous 

factual conclusions, he has merely asserted that the District Court might have done so. 

Palmer has, however, claimed that the District Court never heard about Palmer‟s own 

history and character, which it was required to consider under § 3553(a). Because this is 

the only specific error he alleges in his brief, his claim is wholly dependent on his claim 

that there was no argument made relating to evidence of his character and history.

In addition to his counsel‟s argument at the sentencing hearing, Palmer introduced 

the testimony of two family witnesses who testified to his personal qualities, and Palmer 

himself offered allocution of his good character to the District Court. In light of this 

substantial evidence of Palmer‟s history and character, we cannot conclude that the 

District Court did not properly consider the relevant § 3553(a) factors. We note that 

Palmer has not specifically articulated a single additional point he believes the District 

Court judge was precluded from hearing. We therefore conclude that between the

argument of Palmer‟s counsel, his witnesses, and his own allocution, the District Court

judge had all of the information he needed when he ended argument by Palmer‟s counsel. 

We hold that the District Court did not err in its sentencing colloquy with Palmer‟s 

counsel.

IV.
7

Because we conclude that the District Court did not commit procedural error at 

Palmer‟s sentencing, we will affirm the District Court‟s sentence.