2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-28-2006

USA v. Lloyd

Precedential or Non-Precedential: Precedential

Docket No. 05-4241

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"USA v. Lloyd" (2006). 2006 Decisions. Paper 136.

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 05-4241

 

 

UNITED STATES OF AMERICA

v.

ERIC LLOYD

a/k/a

Calvin Larue

a/k/a

Butter

Eric Floyd,

Appellant

 

On Appeal from the United States District Court

for the District of Delaware

(D.C. Crim. No. 02-cr-00141-1)

Honorable Kent Jordan, District Judge

 

Submitted under Third Circuit LAR 34.1(a)

November 9, 2006

BEFORE: SLOVITER, CHAGARES, 

and GREENBERG, Circuit Judges

(Filed: November 28, 2006)

 

Peter Goldberger

50 Rittenhouse Place

Ardmore, PA 19003-2276
2

 Attorney for Appellant

Colm F. Connolly

United States Attorney

Richard G. Andrews

First Assistant U.S. Attorney

1007 N. Orange Street

P.O. Box 2046

Wilmington, DE 19899-2046

 Attorneys for Appellee

 

OPINION OF THE COURT

 

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before the court on Eric Lloyd’s

appeal from a judgment of conviction and sentence entered

August 23, 2005, based on his plea of guilty to a count in a

superseding indictment charging him with conspiracy to possess

with intent to distribute more than 500 grams of cocaine in

violation of 21 U.S.C. § 846. The appeal raises issues limited to

his resentencing after our remand for that purpose in light of

United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005),

pursuant to which the sentencing guidelines now are advisory. 

The district court prior to Booker sentenced Lloyd at the bottom

of the applicable sentencing guideline range of 168 to 210

months to a 168-month custodial term to be followed by a 5-year

term of supervised release. After our remand following Booker,

the district court, which did not change its calculation of the

sentencing range, again sentenced Lloyd to an 168-month

custodial term to be followed by a 5-year term of supervised

release. 

The district court had jurisdiction under 18 U.S.C. § 3231

and we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
3

§ 3742(a). See United States v. Giaquinto, 441 F.3d 195, 197

(3d Cir. 2006); United States v. Cooper, 437 F.3d 324, 327-28

(3d Cir. 2006). In adjudicating this appeal we recognize that, in

general, a court of appeals gives deference to a district court’s

sentencing determinations and thus reviews sentences on an

abuse of discretion basis. Id. at 330-32. But to the extent that

this appeal involves contentions that the district court made

mistakes of law, our review is plenary. See Gibbs v. Cross, 160

F.3d 962, 964 (3d Cir. 1998). Nevertheless, insofar as Lloyd is

advancing contentions that he did not preserve in the district

court, our review is confined by the exacting plain error

standards. See United States v. Merlino, 349 F.3d 144, 161 (3d

Cir. 2003). 

Lloyd advances three contentions on this appeal. First, he

contends that the district court erred as he regards it as having

established a presumptively correct range of reasonable

sentences based on the sentencing guidelines rather than having

treated the guidelines as being only one of several factors under

18 U.S.C. § 3553(a) for a court to consider before imposing

sentence. Second, he contends that the court failed to offer a

meaningful rationale for concluding that a sentence within the

now advisory guidelines was the least sufficient sentence to

achieve the purposes of punishment. Third, he contends that it

was not reasonable for the court to determine that the sentence it

imposed, though within the guidelines, was the least sentence

sufficient to satisfy the purposes of punishment.

II. DISCUSSION

A. The district court did not place too much

weight on the advisory sentencing guidelines.

Lloyd argues that the district court “imposed sentence

under a fundamental misapprehension of the statutory

framework which governs after [Booker].” Appellant’s br. at 10. 

In this regard he contends that the court ignored Booker and

instead “announced its own intention to follow the guidelines in

all but unspecified exceptional cases.” Id. at 12. He believes
1

In his brief Lloyd does not quote all of the district court’s

remarks that we set forth at this point but we expand on the quoted

remarks in the brief for purposes of clarity.

4

that the court was wrong as post-Booker “the guideline range is

but one of numerous factors to be ‘considered,’ and that the Act

plainly states that the range is to be treated as inherently neither

more or less significant than any other factor.” Id. at 13.

In particular, he takes issue with the district court’s

following statements:

And if I were to say, as your attorney is

encouraging me, ‘you know what, under [18

U.S.C. §] 3553, that feels too harsh to me, I’m just

not going to pay any attention to that guideline

range,’ I would be ignoring what the elected

representatives of the United States citizens have

strongly encouraged and what I think to be wise

and good public policy, which is a fair degree of

predictability and consistency in sentencing across

the country. . . . So I believe that guideline range

is the thing that I should be looking to primarily. 

Id. at 12;1

 app. at 122.

After our review of the matter we are satisfied that

Lloyd’s select extraction from the district court’s remarks does

not reflect fairly on what the court said. Rather, read as a whole

and in context, these statements take on a different meaning. 

Accordingly, we quote them at greater length:

I don’t feel, as your attorney has said, shackled by

the guidelines and I’m going to give you the

sentence I gave you before because the guidelines I

view as deserving great weight in my

consideration. 

. . . .
5

. . . I look to the direction of the Federal

Sentencing Guidelines which do represent an effort

by the United States Government to avoid

sentencing disparity across the nation . . . . And if

I were to say, as your attorney is encouraging me,

‘you know what, under [18 U.S.C. §] 3553, that

feels too harsh to me, I’m just not going to pay any

attention to that guideline range,’ I would be

ignoring what the elected representatives of the

United States citizens have strongly encouraged

and what I think to be wise and good public policy,

which is a fair degree of predictability and

consistency in sentencing across the country. So I

don’t view the guidelines as shackling me, I view

them as allowing me to be fair and consistent with

other judges who have the unhappy responsibility

of sentencing.

So I believe that guideline range is the thing

that I should be looking to primarily. I looked at

the other factors under [section] 3553(a). I’ve

examined them and think that they are not

inconsistent with the sentence that you received. I

won’t go into things that we talked about at the

first sentencing. Suffice it to say that your

criminal history for [a] relatively young man is

significant and clearly played a role here.

I reject the assertion that the sentence given

to you is out of keeping with what the

codefendants got. On the contrary, for each of

your codefendants, as with you, I paid careful

attention to what the criminal history and the

offense level was and sentenced them as I thought

appropriate in light of all the factors that were in

play in each of their cases.

. . . .

The Court has considered the defendant’s

arguments regarding sentencing and has
2

There were two other defendants in this case, Albari Malik

Johnson, who pleaded not guilty and was convicted of conspiracy to

possess with intent to distribute an unspecified amount of cocaine, and

Ernest Morris, who pleaded guilty to offenses arising out of the

conspiracy. The court imposed a below-guideline custodial sentence of

180 months to be followed by a 10-year term of supervised release on

Morris pursuant to a government substantial-assistance motion. The

court sentenced Johnson, who had a criminal history category of I and

had a less significant role in the conspiracy than Lloyd, to a 121-month

custodial term to be followed by a 3-year term of supervised release.

3 The section 3553(a) factors are:

(1) the nature and circumstances of the offense and the

history and characteristics of the defendant;

(2) the need for the sentence imposed–

(A) to reflect the seriousness of the

offense, to promote respect for the law,

and to provide just punishment for the

6

considered [the] United States Supreme Court’s

decision in Booker which ruled [the] sentencing

guidelines are now advisory. The Court also

believes the sentence which is within the advisory

guidelines range . . . meets the sentencing goals

outlined in Title 18, United States Code, Section

3553.

App. at 121-25.2

 

Whether we consider the district court’s view of the role

of the sentencing guidelines from a plenary approach or under an

abuse of discretion standard, we cannot say that the court erred

in applying Booker. In fact, the court’s remarks are entirely

consistent with our opinion in Cooper in which we discussed the

function of the sentencing judge after Booker and, in particular,

the role of the guidelines in relation to the other 18 U.S.C. §

3553(a) sentencing factors. In Cooper we held that the district

court must give “meaningful consideration” to the section

3553(a) factors,3

 but the court need not “discuss and make
offense;

(B) to afford adequate deterrence to

criminal conduct;

(C) to protect the public from further

crimes of the defendant; and

(D) to provide the defendant with needed

educational and vocational training,

medical care, or other correctional

treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range

established for . . . the applicable category of offense

committed by the applicable category of defendants as

set forth in the guidelines . . . ;

(5) any pertinent policy statement issued by the Sentencing

Commission;

(6) the need to avoid unwarranted sentence disparities

among defendants with similar records who have been

found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the

offense.

7

findings of each of the § 3553(a) factors if the record makes

clear the court took the factors into account in sentencing.” Id.

at 329. As to the function of the guidelines, in Cooper we stated:

The advisory guidelines range is itself one of the §

3553(a) factors, 18 U.S.C. § 3553(a)(4), and

continues to play an integral part in sentencing

decisions. In Booker, the Court explicitly directed

district courts to continue to ‘take account of the

Guidelines together with other sentencing goals. 

The Guidelines remain an essential tool in creating
8

a fair and uniform sentencing regime across the

country,’ and provide a natural starting point for

the determination of the appropriate level of

punishment for criminal conduct. The § 3553(a)

factors were intended to guide the Sentencing

Commission in its formulation of sentencing

guidelines.

Id. at 331 (citations and footnotes omitted).

The district court’s remarks at sentencing in this case

were consistent with our holding in Cooper. In this case the

court relied on the guidelines as “a natural starting point” and

gave “meaningful consideration” to the other section 3553(a)

factors. In particular, the court at the resentencing considered

more factors than the guidelines in crafting Lloyd’s sentence as

it also took into account the other section 3553(a) considerations

including his lengthy criminal history, the sentences of the other

defendants, and the need to avoid sentencing disparities among

defendants with similar records found guilty of similar

misconduct. In this exercise, it did not abuse its discretion.

Lloyd also argues that the district court erred in failing to

consider his post-sentence rehabilitation efforts. But his attorney

in the district court did not object at sentencing to the court’s

approach with respect to his post-sentence rehabilitation efforts

and, thus, we could grant relief by reason of the district court’s

treatment of those efforts only if we found plain error.

U.S.S.G. § 5K2.19 (Policy Statement) states, “Postsentencing rehabilitative efforts, even if exceptional, undertaken

by a defendant after imposition of a term of imprisonment for the

instant offense are not an appropriate basis for a downward

departure when resentencing the defendant for that offense.” 

Under Booker, it is entirely appropriate for a court to consider

pertinent policy statements. See 18 U.S.C. § 3553(a)(5). Lloyd

nevertheless contends that section 5K2.19 no longer has

prohibitive force so that, in this case, the district court should

have given more consideration than it did to his post-sentencing

rehabilitation efforts. In this regard the court stated,
9

I have one final comment for you, Mr. Lloyd. I

have listened carefully and paid attention to

information provided to me by your attorney about

your postconviction rehabilitative efforts. It’s true

that the sentencing guidelines direct me not to

make that a factor in reducing the sentence that

you’re going to face but I hope you continue on the

path you have chosen. Regardless of what I say or

anybody else says or does, your life is your own,

sir, and you do yourself the most good by

continuing on in your effort to make the most of

your opportunities.

App. at 126-27. 

We see no plain error or indeed any error at law in what

the court did. Though section 5K2.19, as part of the guidelines

as a whole, is now advisory, nevertheless it would be an unusual

case in which a defendant’s post-sentence rehabilitation efforts

following a Booker remand should impact on the sentence. 

After all, by definition those circumstances did not exist at the

time of the original sentence. In United States v. Worley, 453

F.3d 706 (6th Cir. 2006), the Court of Appeals for the Sixth

Circuit looked at this specific issue and held:

[I]n a Booker remand . . . the conduct or

circumstances that bear on the § 3553(a) factors

must have been in existence at the time the original

sentence was imposed. In [the case under review],

the § 3553(a) factors raised by the defendants all

involved matters occurring after the date of

sentencing. The goal of the [Booker] remand is to

determine if, at the time of sentencing, the district

judge would have imposed a different sentence in the

absence of mandatory guidelines. Post-sentencing

events or conduct simply are not relevant to that

inquiry. 

Id. at 709 (quoting United States v. Re, 419 F.3d 582, 584 (7th

Cir. 2005)). Both the Courts of Appeals for the Sixth and

Seventh Circuits have concluded that “given the limited nature
4

We realize that Hertzog was a not precedential opinion but we

quote that opinion because we are adopting its language as our own

rather than as a precedent. In fact, in Hertzog we used the language we

now quote in characterizing the district court’s remarks at the

resentencing. Significantly, the district court in Hertzog recognized that

it had discretion to grant a departure for the defendant’s post-sentencing

rehabilitation efforts, an approach with which we agree though it should

exercise its discretion to consider post-sentencing rehabilitation efforts

sparingly. 

5

We do not address the propriety of considering post-sentencing

rehabilitation efforts at a resentencing other than in a Booker context,

though we observe that section 5K2.19 by its terms is not confined to

Booker resentencings.

10

of the remand, the defendant’s post-sentencing efforts while

incarcerated were not relevant . . . .” Worley, 453 F.3d at 709;

see also Re, 419 F.3d at 583-84. 

We essentially agree with these courts, though we would

not hold that a court never could consider a defendant’s postsentencing rehabilitation efforts when resentencing. In this

regard we point out that Booker surely impacted on the

mandatory nature of section 5K2.19, even though it has not

changed the usual practical impact of that section at a Booker

resentencing. Yet our opening for consideration of postsentencing rehabilitation efforts is narrow for we reiterate our

view that a court, except in unusual cases, should consider only

conduct and circumstances in existence at the time of the

original sentencing when it resentences following a Booker

remand. After all, an approach permitting a defendant’s postsentencing rehabilitation efforts to impact on a resentence

“would unfairly disadvantage defendants who were ineligible for

re-sentencing and therefore had no opportunity to bring their

rehabilitative efforts before the sentencing court.” United States

v. Hertzog, 186 Fed. Appx. 314, 317 (3d Cir. 2006).4 In this

case we are unaware of any circumstance that could satisfy the

exacting standard that we have set to justify a court in

considering post-sentencing rehabilitation efforts following a

Booker resentencing.5

 
6

We have explained the application of the plain error standard as

follows: “Thus, for this Court to grant the relief the defendant[] seek[s],

the District Court must have committed plain error that prejudiced them.

Even where error and prejudice are found, we will only exercise our

discretion to correct the error if it ‘seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.’” Merlino, 349

F.3d at 161 (citations omitted). 

11

B. The district court gave sufficient reasons for

not sentencing Lloyd below the guideline range.

Under 18 U.S.C. § 3553(c)(1), a district court is obligated

to state in open court “the reasons for imposing a sentence at a

particular point within [a guidelines sentencing] range”

exceeding 24 months. That section obligates a district court to

“give concrete reasons” for its sentence. United States v.

Gricco, 277 F.3d 339, 363 (3d Cir. 2002).

Prior to Booker, we held that a court’s failure to comply

with this requirement was harmless if it sentenced the defendant

at the bottom of the guidelines range as the defendant received

the lightest possible sentence, absent a departure. Id. at 363

n.15. Lloyd contends that now that the guidelines are merely

advisory, a sentence at the bottom of the range is not the least

possible sentence and, accordingly, a court’s failure to comply

with section 3553(c)(1) is not harmless. Therefore, Lloyd argues

that the district court must comply with the requirement to state

its reasoning in all sentencings where the guidelines range

exceeds 24 months, even in cases where the sentence is at the

bottom of the guidelines range. Lloyd did not advance this

contention in the district court. 

Even assuming that Lloyd is correct that a violation of

section 3553(c)(1) is no longer necessarily harmless if the court

sentences the defendant at the bottom of the guidelines range, in

this case the court was in compliance with any requirement, if

there was one, that it state its reasoning for imposing the

sentence at a particular point within the applicable range and the

fact that it did not give a fuller explanation certainly could not

rise to the level of plain error or, indeed, any error at all.6

 In

reaching this conclusion we recognize that, of course, it is
7

Lloyd’s positions on this appeal seem to be inconsistent. First

he argues that the guidelines are merely one factor among numerous

considerations of equal weight in the sentence. Then he contends that

section 3553(c)(1) has an enhanced significance after Booker, though it

might be expected that his contention on the second point in view of his

12

always possible for a court to say more at a sentencing than it

does. Yet a court can provide “concrete reasons” for its sentence

without speaking at great length and the court did so here. After

all, among other things, it stated that Lloyd’s “criminal history

for [a] relatively young man is significant and clearly played a

role here,” and observed that the sentence was in proportion to

the sentences of the two co-defendants. App. at 123. Moreover,

the court referred to the original sentencing, in which it said: 

I want to make it clear that I don’t believe

that you’re simply a misguided youth at this point

in your life. You appear, from the evidence that

I’ve seen, to be a sophisticated businessman . . . ,

but who has chosen as his stock and trade the

poison of drugs, which are a curse on society and

which, in supreme irony, inflict upon others the

very circumstances that have been so terribly

detrimental in your own life.

That’s not lost on me at all. And the poison

that you were instrumental in bringing into this

community may very well be – indeed, it’s almost

certain to be producing another boy whose mother

or father will die early, who will beat and abuse

them because of drug abuse, and who will, in turn,

have their life wrecked.

App. at 5-6. Plainly the court satisfied its obligation to provide

“concrete reasons” for the sentence, which included Lloyd’s

criminal record, the co-defendants’ sentences, and the danger of

Lloyd’s crime to society. Indeed, we believe that ordinarily a

court when fully explaining its sentence will satisfy section

3553(c)(1) even without mentioning that section. In the

circumstances, we repeat that the court did not commit plain

error or any error at all under section 3553(c)(1).7
first point should be exactly contrary to the one he takes.

13

C. The sentence was reasonable.

Lloyd argues that the 168-month sentence, though at the

bottom of the guidelines range, was unreasonable because it was

greater than necessary to accomplish the goals of criminal

punishment and a lesser penalty would have been sufficient. He

argues that the sentence was unreasonable because: he was only

26 years old at the time of resentencing; he has three children; he

did not know his father; his mother was a drug addict who died

when he was 17; he accumulated nine criminal history points by

age 18; he left high school after the tenth grade; he was a drug

abuser; he made significant efforts at self-improvement while in

prison; and he has loving friends and family. Lloyd asserts that

“[a]ny ‘reasonable’ sentencing decision would have to take into

account these objective indicators of a substantial need for and

likelihood to benefit from rehabilitation, following a rocky start

in very difficult circumstances.” Appellant’s br. at 34-35. 

In Booker “the Supreme Court directed appellate courts to

review sentences for reasonableness . . . . ” Cooper, 437 F.3d at

326. In Cooper we described the sentencing court’s obligations

and the contours of an appellate court’s review:

To determine if the court acted reasonably

in imposing the resulting sentence, we must first

be satisfied the court exercised its discretion by

considering the relevant [§ 3553(a)] factors . . . . 

The record must demonstrate the trial court gave

meaningful consideration to the § 3553(a) factors. 

The court need not discuss every argument made

by a litigant if an argument is clearly without

merit. Nor must a court discuss and make findings

of each of the § 3553(a) factors if the record makes

clear the court took the factors into account in

sentencing . . . .

. . . .
14

In addition to ensuring a trial court

considered the § 3553(a) factors, we must also

ascertain whether those factors were reasonably

applied to the circumstances of the case. In doing

so, we apply a deferential standard, the trial court

being in the best position to determine the

appropriate sentence in light of the particular

circumstances of the case. Under such

circumstances, deference should be given. As the

Court of Appeals for the Seventh Circuit recently

held,

[t]he question is not how we

ourselves would have resolved the

factors identified as relevant by

section 3553(a) . . . nor what

sentence we ourselves ultimately

might have decided to impose on the

defendant. We are not sentencing

judges. Rather, what we must decide

is whether the district judge imposed

the sentence he or she did for reasons

that are logical and consistent with

the factors set forth in section

3553(a).

While we review for reasonableness

whether a sentence lies within or outside the

applicable guidelines range, it is less likely that a

within-guidelines sentence, as opposed to an

outside-guidelines sentence, will be unreasonable .

. . . 

Although a within-guidelines range

sentence is more likely to be reasonable than one

that lies outside the advisory guidelines range, a

within-guidelines range is not necessarily

reasonable per se. Otherwise, as several Courts of

Appeals have concluded, we would come close to

restoring the mandatory nature of the guidelines

excised in Booker. Nor do we find it necessary . . .
8

Arguably Lloyd’s criminal history suggests that a longer rather

than shorter sentence than otherwise might have been appropriate should

have been imposed. That view of a substantial criminal history surely

is the more conventional approach than that which Lloyd takes. After

all, under the sentencing guidelines the more aggravated a defendant’s

criminal history, the higher his sentencing range is likely to be.

15

to adopt a rebuttable presumption of reasonable for

within-guidelines sentences . . . .

To sum up, appellants have the burden of

demonstrating unreasonableness. A sentence that

falls within the guidelines range is more likely to

be reasonable than one outside the guidelines

range. There are no magic words that a district

judge must invoke when sentencing, but the record

should demonstrate that the court considered the §

3553(a) factors and any sentencing grounds

properly raised by the parties which have

recognized legal merit and factual support in the

record.

 Id. at 329-32 (citations and footnotes omitted). 

Lloyd has not satisfied his burden of proving that the 168-

month sentence followed by a 5-year term of supervised release

was unreasonable. The sentence was at the bottom of the

guideline range and thus, in the words of Cooper, was “more

likely to be reasonable that one outside the guidelines range.” 

The court gave “meaningful consideration” to the relevant

section 3553(a) factors and “reasonably applied the factors to the

circumstances of the case.” See United States v. Charles, No.

05-5326, F.3d , 2006 WL 3231396, at * 2 (3d Cir. Nov. 9,

2006). Though the court considered Lloyd’s life circumstances

which he contends should have mitigated the sentence, the fact is

that there is no denying Lloyd was involved in criminal conduct

involving a substantial quantity of cocaine.8

 He has been living

the life of a criminal since age 17, having been convicted of

numerous felonies and other offenses. 
16

III. CONCLUSION

For the foregoing reason the judgment of conviction and

sentence entered August 23, 2005, will be affirmed.