2011 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

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w . v i l l a no v a . e du/thir dc ir c uit_2011/2019NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________ 09

- 4357

_______________ UNITED STATES OF AMERICA

v. JOHN DOE, Appellant

_______________ On Appeal from the United States Dis trict Court for the Eastern District of Pennsylvania (D.C. Criminal No. 2

- 09

- cr - 00 397

- 00 1) Distr ict Judge: Hon. R. Barclay Surrick

_______________ Submitted Pursuant to Third Circuit LAR 34.1(a) November 9, 2010 BEFORE: MCKEE , Chief Judge , SLOVITER and COWEN , Circuit Judges (Filed: January 5, 2011 )

_______________ OPINION

_______________ COWEN, Circuit Judge

. John Doe appeals from the criminal judgment entered by the United States District Court for the Eastern District of Pennsylvan ia , asserting that his sentence was2 procedurally unreasonable. We will affirm.
I. On February 24, 1999, Doe, a native and citizen of Jamaica , unsuccessfully attempted to enter the United States using a fraudulently obtained visa issued under a false name

. He was immediately deported to Jamaica on the very next day. U sing a fraudulent Jamaican passport issued under another false name, Doe reentered the United States on August 23, 2003. He was eventually convicted in the United States District Court for the Eastern District of Pennsylvania on charges of ill egal re entry after deportation, making false claim s of citizenship as well as false statements to law enforcement officers, unlawful possession of a firearm by an illegal alien, and possession of mariju ana with intent to distribute

. On November 15, 2004, t he District Court sentenced Doe to a term of imprisonment of 35 months followed by a period of supervised release

. He was then deported on February 22, 2007.
Doe subsequently return ed to the Uni ted States

. After the Pennsylvania Department of Transportation reissued a driver’s license to Doe under yet another false name, he was eventually arrested and charged with one count of illegal reentry in violation of 8 U.S.C. § 1326(a) and (b)(2)

. Doe p led guilt y on August 3, 2009. In computing the sentencing range under the Sentencing Guidelines , the probation officer applied U.S.S.G. § 2L1.2(b)(1)(A) (i)

. T his provision requires that the offense level “be increased by 16 levels since the defendant wa s previously deported after sustaining a conviction for a felony that was a drug trafficking offense for which the3 imposed sentence exceeded 13 months.” (PSR ¶ 21.) Doe’s base offense level accordingly went from 8 to 24. H e also received credit for acce pting responsibility, lowering his offense level by 3. The probation officer’s calculation ultimately yielded an adjusted offense level of 21. Given a Category III criminal history, the resulting Guideli ne range was 46 to 57 months. According to Doe, the Guideline range , in the absenc e of “the 16

- level enhancement,” would have been only 2 to 8 months. (Appellant’s Brief at 7.) Alternatively, “[i]f the marijuana offense had been treated as an ‘aggravated felony’

. . . the sentencing range would have been 18 to 24 months.” ( Id. ) Both the prosecution and the defense submitted sentencing memoranda to the District Court. In his 1 5

- page memorandum, Doe asked the District Court to impose a sentence below the probation officer’s calculated range for a num ber of reasons, framing his various arguments i n terms of the statutory sentencing factors enumerated in 18 U.S.C. § 3553(a). In particular, he argued, in connection with the need “[t] o reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense,” that “[a] do wnward variance is necessary and warranted to address the excessive severity of the 16

- level increase at U.S.S.G. § 2L 1.2(b)(1)(A).” (A34.) Submitting an exhibit in support of his challenge, h e pu rported to describe in some detail the various problems with this Guideline enhancement. A sentencing hearing was then conducted on November 3, 2009. Counsel for both the government and Doe stated that there were no objections to the presentence4 investigation report. After noting the Guideline range calculation i n this report and adopting the report’s factual statements , the District Court informed the defense counsel that he was ready to “hear whatever you have to say

. ” (A74.) Doe’s attorney a sked whether the defense’s sentencing memorandum had been received. The District Court answered in the affirmative and then stated, “I have read it. I’ve read the Government’s sentencing memorandum. I’ve

– they’re made a part of the record.” (A 74

- A 75.) The defense counsel according ly noted that , “as I described in the memo, I won’t go into detail, but [Doe] came back under very difficult circumstances.” (A75.) The defense counsel then proceeded to address at some length several of the arguments rai sed in Doe’s sentencing memorandum, with the critical exception of his challenge to the Guideline enhancement. The attorney accordingly discussed Doe’s background , his personal and family circumstances , his purported reasons fo r leaving Jamaica and return ing to the United States ( e.g. , the fear of political violence) , his past efforts at cooperation, and his desire to cooper ate in the future. The defense counsel specifically requested a variance due to the absence of a “fast

- track” program for illegal

ree ntry cases in the Eastern District of Pennsylvania

. Doe was also scheduled to be sentenced by another District Judge for his violation of the term of supervised release imposed in 2004, and the defense counsel expect ed that his client would receive a

cons ecutive sentence for th is violation

. 1

1 It appears that Doe did in fact receive a 3

- month consecutive sentence for the supervised The defense counsel ultimately asked the District Court to sentence Doe to a 30

- month term of imprisonment : “What I would ask5 Your Honor to do under all the circumstances is to give him a variance and

– and not a

–

n ot a tremendous variance, but give him a 30 month sentence

. ” (A79

- A80.) Such a sentence would have been at the low end of the applicable Guideline range if Doe received a “fast

- track” reduction

. On the other hand, t he prosecution , pointing to Doe’s prior criminal history and other factors , requested a sentence within the Guideline range of 46 to 57 months . In his reply, the defense counsel focused on the questi on of cooperation. Doe also made a brief
statement of his own , apologizing for any incon venience he may have caused and claiming that he fled Jamaica to the “safest place I ever know on earth.” (A91.) Sentencing Doe to a term of imprisonment of 42 months, the District Court explained its reasoning on the record

. It initially noted that “[t]he crime here, reentry after deportation, is a serious crime to begin with,” which was “made that much more serious when we have an individual who has been down this road before.” (A92.) In particular, Doe was previously deported in 1999, reentered t he country, was arrested for illegal reentry as well as for possession of both 100 pounds of marijuana and a fire arm , served a prison sentence of 35 months, was deported for a second time , and yet again illegally reentered the country

. “ [T] he fact that we have been down this road before makes it very difficult for me to take into consideration what may be being done in other jurisdictions” in terms of some sort of “fast

- track” program. ( Id. ) T he District Court stated that , “in border states they’re not g iving an awful lot of consideration to somebody

release violation.6 who’s been around the horn three times, so this is a most serious offense.” ( Id. ) On the other hand, t he District Court did take into account Doe’s purported reasons for coming back to this country as well as his attempts at cooperation (although it also question ed Doe’s own explanation for why he returned to the United States given his past history of deception) . According to the District Court, it would have actually imposed an even highe r sentence in the absence of such considerations

. The District Court believed that a term of imprisonment of 42 months, which “is below the Guideline range, but not significantly below the Guideline range,” to be followed by a period of 3 years of
supe rvised release, repr esented “a reasonable sentence under these circumstances

. ” ( A94.) In turn, it hoped that Doe would thereby learn his “lesson” from this sentence, although the District Court still expressed some concern about the fact that he previously committed a super vised release violation. ( Id. ) In formally imposing the sentence, the District Court stated that this sentence punished Doe for his conduct, will deter others, and will protect the public. In its written statement of reasons , the District Court likewi se claimed that the below

- Guideline
sentence was reasonable under the circumstances, pointing, inter alia, to the serious nature of the instant offense, Doe’s status as a repeat offender, and his acts of cooperation.
II. Doe contends that his sentence w as procedurally unreasonable because the District Court failed to consider his ar gument that the 16

- level enhancement called for by7 U.S.S.G. § 2 L1. 2(b)(1)(A) unreasonably overstated the seriousness of the offense. 2

Doe certainly addressed the Guideline enhancement’s alleged deficiencies in his sentencing memorandum, specifically asking for a variance on account of the enhancement’s allegedly undue severity. But, at the sentencing hearing i tself, neither the defense attorney nor Doe ever mentioned , eve n indirectly or in passing, the Guideline enhancement and its purported deficiencies . In con trast, the defense counsel did ask for a lower sentence based on other grounds raised in the sentenc ing memorandum, including Doe’s purported reasons for returning to the United States, his efforts at cooperation, and (especially) the absence of a “fast

- track” program in the Eastern District

. Far from explaining the alleged problems with the Guideline e nhancement and asking for a variance or a lower sentence because of these problems , the attorney went so far as to A sentencing court “must acknowledge and respond to any properly presented sentencing argument which has colorable legal merit and a factual basis.” United States v. Ausburn , 502 F.3d 313, 328

- 29 (3d Cir. 2007) (citations omitted) ; see also , e.g. , United States v. Sevilla , 541 F.3d 226, 228, 23 1

- 33 (3d Cir. 2008)

. The government, however, contends tha t the District Court satisfied its sentencing obligations in this matter and imposed a procedurally reasonable sentence. I n the end, we reject Doe’s procedural challenge to the District C ourt’s se ntencing determination

.

2 T he District Court had subject matter jurisdiction over this matter pursuant to 18 U.S.C. § 3231. We have appellate jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We generally review a district court’s sentencing decision for an abuse of discre tion, and this review includes determining whether the district court committed a significant procedural error by, for example, failing to consider colorable arguments raised by the8 request a 30

- month term of imprisonment. D oe’s attorney t hereby sought a sentence above the range that would have applied in the absence of the Guideline enhancement. While the District Court certainly could have addressed the attack on the Guideline enhancement in more detail, it quite understandably focused on the various contentions actually raised at the sentencing hearing itself

. In any case , the District Court indicated that it had r eceived the defense’s sentencing memorandum and read both this memorandum as well as the memorandum submitted by the g overnment. More broadly, the District Court clearly believed that a 42

- month sentence , which was itself below the “enhanced” Guideline range a s calculated by the probation officer, was necess ary and appropriate under the circumstances

. Finding Doe’s own criminal history to be quite troubling, t he District Court emphasized that Doe himself was previously deported, then served a sentence of 35 months for illegal reentry, possession of 100 pounds of marijuana, and illegal possession of a firearm, and, despite still being subject to a term of supervised release, illegally reentered the country yet again

. Finally , we must not overlook the practical circumstances surrounding a district court’s sentencing determination. See, e.g., Ausburn , 502 F.3d at 328 ( “We have recognized that ‘sentencing judges normally state and resolve issues from the ben ch while the sentencing proceeding is underway,’ and that these contextual and ‘often spontaneous remarks are addressed primarily to the case at hand and are unlikely to be a perfect or complete statement of all of the surrounding law. ’ ” (quoting United St ates v. Cooper , 437 F.3d 324, 330 n.8 (3d Cir. 2006)) ).

defendant. See, e.g. , United States v. Sevilla , 541 F.3d 226, 230

- 32 (3d Cir. 2008).9 III. For the foregoing reasons, we will affirm the District Court’s judgment

. 3

3 Doe also filed a motion for leave to proceed under a pseudonym as well as a motion for leave to file the second volume of the joint appendix under seal. Both motions are granted.