NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________ 

No. 11-1309

_____________

 

UNITED STATES OF AMERICA

v.

RODERICK F. BAILEY,

 Appellant 

_____________

Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Criminal No. 1-06-cr-00157-004)

District Judge: Honorable David Stewart Cercone

_____________ 

Submitted Under Third Circuit LAR 34.1(a)

November 14, 2011

Before: RENDELL and AMBRO, Circuit Judges

and JONES, II, District Judge

(Opinion Filed: January 24, 2012 ) 

_____________

OPINION OF THE COURT 

_____________

 

The Honorable C. Darnell Jones, II, District Judge for the United States District Court 

for the Eastern District of Pennsylvania, sitting by designation.
2

JONES, II, District Judge.

On January 20, 2011, Appellant Roderick F. Bailey (“Bailey”) was sentenced to 

serve two concurrent 178-month terms of imprisonment, followed by five years of 

supervised release, for his participation in an illegal drug ring.

1 Bailey now appeals his 

judgment of sentence. For the reasons set forth hereinbelow, that judgment will be 

vacated and the matter will be remanded for resentencing.

I.

We write primarily for the benefit of the parties and thus recount only the essential 

facts and procedural history.

Bailey was involved in criminal drug activity, which occurred between March

2004 and March 2006. Wiretap evidence collected on January 13, 2006 revealed 

communications between Bailey and another target of the investigation, Shawn Hall. 

(App. 22) Bailey had arranged to purchase cocaine from Hall and surveillance officers 

observed Bailey arriving at Hall‟s residence and leaving a short time later. (App. 22) 

After Bailey drove off, officers stopped him and ultimately seized 492.8 grams of cocaine 

from the vehicle. (App. 22-23) Bailey later admitted that on January 11, 2006, January 

13, 2006, and February 7, 2006, he possessed cocaine with the intent to distribute it and 

that he was distributing between five (5) to fifteen (15) kilograms of cocaine in 

conspiracy with Hall and others. (App. 23-24).2 

 

1

 Bailey‟s original judgment of sentence was amended on January 31, 2011 to correct 

defense counsel‟s name.

2

 These facts were directly admitted by Bailey during his Change of Plea Hearing.
3

As a result of these events, Bailey was charged by criminal indictment with: one 

count of Conspiracy to Distribute and Possess With the Intent to Distribute Five 

Kilograms or More of Cocaine, in violation of 21 U.S.C. § 846; and three counts of 

Possession With Intent to Distribute Cocaine, in violation of 21 U.S.C. § 841(a)(1) and 

§841(b)(1)(C). Bailey pleaded guilty to same on November 2, 2006, and prior to 

sentencing filed a Sentencing Memorandum, wherein he argued that Recklessly 

Endangering Another Person was not a crime of violence for purposes of U.S.S.G. § 

4B1.1 and that his criminal history was over-represented by reason of the “career 

offender” classification that had been assigned to him. (App. 28-30, 40-42)

On May 2, 2007, Bailey was sentenced to serve two concurrent 180-month terms 

of imprisonment, followed by one year of supervised release.3 (App. 67) On January 

24, 2008, Bailey filed a pro se Motion to Vacate Sentence pursuant to 28 U.S.C. § 2255, 

in which he argued that prior counsel was ineffective for failing to file a direct appeal 

from his judgment of sentence, and that prior counsel induced him to plead guilty by 

promising that he would not receive a term of imprisonment of more than 120 months. 

Counsel was appointed for purposes of that Motion and, upon stipulation by the 

government, Bailey‟s sentence was vacated and his appellate rights were reinstated. 

(App. 81) A second sentencing hearing was held on January 20, 2011, after which

Bailey was resentenced to two concurrent 178-month terms of imprisonment, followed by 

five years of supervised release. (App. 103)

 

3

 Bailey‟s initial sentencing hearing commenced on April 23, 2007. However, as the 

court was in the process of imposing sentence, Bailey became ill and court was abruptly 

adjourned. On May 2, 2007, the parties reconvened and the court imposed sentence. 
4

This appeal followed.

II

Bailey raises one issue for this Court‟s consideration: whether the District Court 

committed error when it re-sentenced him without considering post-sentence 

rehabilitation evidence. The Supreme Court recently determined that “District courts 

post-Booker may consider evidence of a defendant‟s postsentencing rehabilitation at 

resentencing and such evidence may, in appropriate cases, support a downward variance 

from the advisory Guidelines range.” Pepper v. United States, 131 S. Ct. 1229, 1249 

(U.S. 2011). In this case, we are unable to determine the extent to which, if any, the 

sentencing court considered such evidence. Therefore, “out of an abundance of caution

and due deference to the Supreme Court‟s instructions in Pepper[,]” we will remand for 

re-sentencing. United States v. Diaz, 639 F.3d 616, 623 (3d Cir. 2011).

In reviewing a sentence, we assess it under an abuse-of-discretion standard. Gall 

v. United States, 552 U.S. 38, 51(2007). Further, the sentencing court‟s factual findings 

are reviewed for clear error. United States v. Lopez, 650 F.3d 952, 959-960 (3d Cir. 

2011) (citing United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007)). However, in 

cases such as this, where no objection was made regarding the sentencing issue currently 

contested, we “review only for plain error.” United States v. Miller, 594 F.3d 172, 183 

n.6 (3d Cir. 2010) (citing United States v. Voelker, 489 F.3d 139, 143 n.1 (3d Cir. 2007)).

At the time of Bailey‟s second sentencing, the court was presented with evidence 

of his employment, as well as activities he engaged in while incarcerated (including 
5

additional classes he had taken). (App. 90-91) To wit, the defense offered the following 

testimony:

Counsel: Could you let the court know what you‟re doing to make 

effective use of your time while you‟ve been there?

Defendant: I‟ve taken - - pretty much, this is my second institution of 

mine. I‟ve pretty much done every class there is possible at 

FCI Elkton as well as FCI McKean. Even some graduate 

classes in regards to different programs that are available to 

me. I‟m actually the clerk up at FCI Elkton on my unit where 

I do all the payroll and everything.

Counsel: For the inmate workers.

Defendant: For the inmate workers. I‟m right next to the counselor and 

you know, I do all those - - doing those jobs to be trusted in 

that manner. So I haven‟t just wasted my time doing 

anything, and I try to be a positive influence to other inmates 

that are trying to do the right thing, you know, and to reunify 

their self back into the community - - integrate their self that 

want to get back into the community.

(App. 89-90)

Bailey informed the sentencing court that he had completed a 40-hour drug 

program in the federal system, had completed some non-mandatory programs, and 

intended to complete the 500-hour drug program when it became available to him.4 

(App. 90-91) However, the sentencing court ultimately concluded that “not very much at 

all has changed between the original sentencing and now” and, as such, the court

 

4

 We of course recognize that a defendant‟s self-expressed “intent” to do something 

cannot constitute rehabilitation evidence. 
6

“incorporate[d] all of the reasons for its original sentence, including the finding that the 

defendant‟s - - that the sentencing guidelines, to some degree, overstated the defendant‟s 

criminal history.” (App. 96-97, 102)

The government argues that Bailey has not preserved his rehabilitation evidence 

claim and that the same has therefore been waived for failure to ask the court to take 

rehabilitation into account when imposing sentence. (Appellee Br. 18) 

Preliminarily, this Court notes that Bailey‟s resentencing occurred on January 20, 

2011, and a final judgment of sentence was entered on January 31, 20115- - while 

Pepper was still pending before the United States Supreme Court. Bailey‟s re-sentencing 

counsel filed an appeal on February 1, 2011, and the Pepper decision was rendered on 

March 2, 2011. Although Bailey‟s counsel did not specifically articulate to the 

sentencing court that she wished for rehabilitation evidence to be considered, she did 

present Mr. Bailey‟s testimony regarding that issue, in which he provided specific 

instances of the rehabilitation he had undergone while in federal custody. Moreover, the 

government acknowledged the fact that Bailey‟s counsel wished to advise the court of 

this information, by stating “[Bailey] wanted to come back and get a second bite at the 

apple to advise the court of the good things that he‟s done and the changes that he‟s made 

in his life and his family situation.” (App. 95-96) Therefore, the issue of post-sentence 

rehabilitation evidence has been preserved.

Inasmuch as Pepper was not law at the time of Bailey‟s re-sentencing, counsel 

cannot be faulted for failing to further pursue the rehabilitation issue or object to the 

 

5

 See supra note 1.
7

court‟s apparent failure to consider such evidence. Similarly, the trial court cannot be 

faulted for failing to apply a precept that was not in existence at the time of Bailey‟s resentencing. However, the law applied by the trial court is now contrary to that which 

exists as we consider this matter on appeal. Accordingly, the District Court‟s failure to 

consider rehabilitation evidence at Bailey‟s re-sentencing must be deemed “plain error.” 

See Johnson v. United States, 520 U.S. 461, 468 (1997) (“[W]here the law at the time of 

trial was settled and clearly contrary to the law at the time of appeal--it is enough that an 

error be „plain‟ at the time of appellate consideration.”).

As this Court recently noted, “[a]ppropriate sentences can only be imposed when 

sentencing courts „consider the widest possible breadth of information about a 

defendant.‟ It is only then that we can „ensure[] that the punishment will suit not merely 

the offense but the individual defendant.‟” United States v. Salinas-Cortez, 660 F.3d 695, 

698 (3d Cir. 2011) (quoting Pepper, 131 S. Ct. at 1240). In that same vein,

[i]t is only by ensuring that the individual circumstances of the defendant 

are not obliterated by the offense that an individual‟s potential to 

successfully rejoin society is maximized and the interest of public safety 

advanced. Thus, “[i]t has been uniform and constant in the federal judicial 

tradition for the sentencing judge to consider every convicted person as an 

individual and every case as a unique study in the human failings that 

sometimes mitigate, sometimes magnify, the crime and the punishment to 

ensue.” Koon v. United States, 518 U.S. 81, 113, 116 S. Ct. 2035, 135 L. 

Ed. 2d 392 (1996). This bedrock principle predates enactment of the 

Guidelines.

It should therefore not be surprising that a defendant‟s postsentencing 

rehabilitation may illuminate a defendant‟s character and assist the 

sentencing court in assessing who the defendant is as well as who s/he may 

become. Such information may, in some cases, be as significant in 

ascertaining the defendant‟s character and likelihood of recidivism as the 

defendant‟s conduct before s/he was forced to account for his/her antisocial 
8

behavior. See Pepper, 131 S. Ct. at 1242 (citing with approval United 

States v. McMannus, 496 F.3d 846, 853 (8th Cir. 2007) (Melloy, J., 

concurring) (“In assessing at least three of the Section 3553(a) factors, 

deterrence, protection of the public and rehabilitation, 18 U.S.C. 

§3553(a)(2)(B)(C) & (D), there would seem to be no better evidence than a 

defendant‟s post-incarceration conduct.”)).

Id.

As indicated above, the sentencing judge herein determined that “[i]n the final 

analysis, not very much at all has changed between the original sentencing and now.” 

(App. 102) He went on to discuss the change in law regarding the status of Bailey‟s prior 

convictions and, based upon this information, concluded that the sentencing guidelines 

“overstated the defendant‟s criminal history.” (App. 102) Absent any indication that 

post-sentence rehabilitation evidence was considered by the court when re-sentencing 

Bailey, the matter must be remanded for re-sentencing in accordance with the mandates 

of Pepper. 131 S.Ct. 1229, 1249 (U.S. 2011).

III

In view of the foregoing, we will remand for resentencing for the limited purpose 

of an on-the-record determination regarding the effect, if any, of Bailey‟s post-sentence 

rehabilitation on his sentence.