NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT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: J anuary 24, 2012 )

_____________ OPINION OF THE COURT

_____________

The Honorable C. Darnell Jones, II, District Judge for the United Stat es District Court for the Eastern District of Pennsylvania, sitting by designation.2

JONES, II , Di strict Judge

. On January 20, 2011, Appellant Roderick F. Bailey (“Bailey”) was sen tenced to
serve two concurrent 17 8

- month terms of imprisonment, followed by five years of supervised release , for his partic ipation in an illegal drug ring

. 1 Bailey now a ppeals his judgment of sentence . F or the rea sons set forth hereinbelow, that judgment will be vacated and the matter will be remand ed for resentencing.
I. We write primarily for the be nefit of the parties and thus r ecount only the essential facts and proc edural 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 ult imately seized 49 2.8 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 o f 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 Mem orandum, 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 t o him . ( App. 28

- 30 , 40

- 42 ) On May 2, 2007, Bailey was sentenced to serve two concurrent 180

- month terms of imprisonment, followed by on e year of supervised release. 3 ( App. 67 ) On January 24, 2008, Bailey filed a pro se Motion to Vacate Sentence pursua nt 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 imprisonmen t of more than 120 months. Counsel wa s 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 o n 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 Co urt committed error when it re

- sentenced him without considering post

- sentence rehabilitation evidence. The Supreme Court recent ly determined that “District courts post

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

resente ncing 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, w e are unable to determine the extent to which, if any, the

sen tencing court considered such evidence. Therefore, “out of an abunda nce 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 f actual 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 r egarding 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. Voelke r, 48 9 F.3d 139, 143 n. 1 (3d Cir. 2007) )

. At the time of Bailey ‟s second sentencing , the court was prese nted with evidence of his employment, as well as activities he engaged in while incarcerated ( including5

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 a nd 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 tr y to be a positive influence to other inmates that are trying to do the right thing, you know, and to reunify their se lf back into the community

- - integrate their self that want to get back into the community. (App. 89

- 90) Bailey inform ed the sentencin g 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 u ltimat ely 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 guideline s, to some degree, overstated the defendan t‟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 reha bilitation into account when imposing senten ce. (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 , 2011 5

- - while Pepper was still pend ing before the United States Supreme C ourt. Bailey‟s re

- sente ncing 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 instanc es of the rehabilitation he had under gone while in federal custody. Moreover, the government acknowl edged 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 lif e 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 faul ted for failing to apply a precept that was not in existence at the time of Bailey‟s re

sentencing. However, the law appli ed by the trial court is now contrary to that which exists as we consider this matter on appeal. Accordingly, the District C ourt‟s failure to consider rehabilitation evidence at Bailey‟s re

- sentencing must be deemed “plain error .” See Johnson v. United S tates , 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]pp ropriate 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 an d 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 ena ctment of the Guidelines. It should therefore not be surprising that a defendant‟s postsentencing rehabilita tion 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 significan t 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 antisocial8 behavior. See Pepper , 131 S. Ct. at 1242 (citing wi th 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), ther e would seem to be no better evidence than a defendant‟s post

- incarceration conduct.”)).
Id. As indicated above , the sente ncing judge herein determined that “ [i] n the final analysis, not very much at all has changed between the original sentencing and no w.” (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 a ny in dication 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 forego i ng, 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.