2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-4-2008

USA v. Sevilla

Precedential or Non-Precedential: Precedential

Docket No. 07-1105

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 07-1105

 

UNITED STATES OF AMERICA

v.

EDUARDO SEVILLA

a/k/a Wilfredo Garcia

a/k/a Mex

a/k/a Mexico

a/k/a Wilfredo Beltram

EDUARDO SEVILLA,

Appellant

 

Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Criminal Action No. 05-cr-00363-1)

District Judge: Honorable Yvette Kane

 

Argued February 5, 2008
Honorable Joseph E. Irenas, Senior District Judge for the *

District of New Jersey, sitting by designation.

2

Before: MCKEE and AMBRO, Circuit Judges,

and IRENAS, District Judge *

Opinion filed: September 4, 2008

James V. Wade

 Federal Public Defender

Fredrick W. Ulrich (Argued)

 Assistant Federal Public Defender

Office of the Federal Public Defender

100 Chestnut Street, Suite 306

Harrisburg, PA 17101

Counsel for Appellant

Thomas A. Marino

 United States Attorney

Eric Pfisterer

 Assistant United States Attorney

Theodore B. Smith (Argued)

 Assistant United States Attorney

United States Attorney’s Office

Middle District of Pennsylvania

228 Walnut Street, Suite 220

Harrisburg, PA 17108

Counsel for Appellee
3

 

OPINION OF THE COURT

 

AMBRO, Circuit Judge

Where, as here, a convicted criminal defendant presents

to the District Court a colorable argument for a lower sentence

under 18 U.S.C. § 3553(a), and the District Court fails to

address that argument, must the defendant then object in order

to preserve the argument for appeal? We conclude that, under

our precedent, he need not. Accordingly, we review the District

Court’s omissions in this case not for plain error, but to

determine whether the Court properly exercised its discretion by

giving meaningful consideration to the relevant factors. 

Applying this standard, we find insufficient evidence for

us to discern whether the District Court meaningfully considered

two of Appellant Eduardo Sevilla’s arguments for a lower

sentence. We thus vacate Sevilla’s sentence and remand for

resentencing.

I. Background

Sevilla pled guilty to conspiracy to distribute, and to

possess with intent to distribute, cocaine base. At sentencing the

Government contended that although Sevilla initially obstructed

justice after his arrest, he subsequently provided substantial
 Considering the § 3553(a) factors to arrive at an 1

ultimate sentence corresponds to step three of United States v.

Gunter, 462 F.3d 237, 247 (3d Cir. 2006). For reference,

§ 3553(a) reads:

Factors to be considered in imposing a

sentence.—The court shall impose a sentence

sufficient, but not greater than necessary, to

comply with the purposes set forth in paragraph

(2) of this subsection. The court, in determining

the particular sentence to be imposed, shall

consider—

(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

offense;

4

assistance to the Government, making inappropriate an increase

in the offense level under U.S.S.G. § 3C1.1 for obstruction. The

Government also moved for a downward departure under

U.S.S.G. § 5K1.1 based on Sevilla’s assistance.

Both in his sentencing memorandum and at the

sentencing hearing, Sevilla raised several grounds for a lower

sentence under 18 U.S.C. § 3553(a). For instance, as to his 1
(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 or 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—

(A) the applicable category of offense

committed by the applicable category of

defendant as set forth in the guidelines—

(i) issued by the Sentencing

Commission pursuant to section

994(a)(1) of title 28, United States

Code, subject to any amendments

made to such guidelines by act of

Congress (regardless of whether

such amendments have yet to be

incorporated by the Sentencing

Commission into amendments

issued under section 994(p) of title

28); and

(ii) that, except as provided in

section 3742(g), are in effect on the

date the defendant is sentenced; or

(B) in the case of a violation of probation

5
or supervised release, the applicable

guidelines or policy statements issued by

the Sentencing Commission pursuant to

section 994(a)(3) of title 28, United States

Code, taking into account any amendments

made to such guidelines or policy

statements by act of Congress (regardless

of whether such amendments have yet to

be incorporated by the Sentencing

Commission into amendments issued

under section 994(p) of title 28);

(5) any pertinent policy statement—

(A) issued by the Sentencing Commission

pursuant to section 994(a)(2) of title 28,

United States Code, subject to any

amendments made to such policy

statement by act of Congress (regardless of

whether such amendments have yet to be

inco rpo rated by the Sentencing

Commission into amendments issued

under section 994(p) of title 28); and

(B) that, except as provided in section

3742(g), is in effect on the date the

defendant is sentenced[;]

(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

6
of the offense.

§ 3553(a).

7

“history and characteristics,” § 3553(a)(1), Sevilla pointed to his

difficult childhood. Sentencing Memorandum on Behalf of

Defendant at 4–5, United States v. Sevilla, No. 1:05-CR-00363

(M.D. Pa. Nov. 22, 2006). He further argued that the federal

Sentencing Guidelines’ disparate treatment of crack and powder

cocaine created a base offense level that did not accurately

reflect his culpability. Id. at 7–10.

The District Court agreed not to increase the offense

level for obstruction. It also decreased the offense level due to

acceptance of responsibility and granted the Government’s

motion for a downward departure for substantial assistance,

though the Court noted it was reluctant to do so given Sevilla’s

initially obstructive behavior. The final advisory Guidelines

range was 70 to 87 months, and the District Court sentenced

Sevilla to 72 months’ imprisonment.

The District Court did not address, however, Sevilla’s

arguments relating to his childhood or the crack/powder cocaine

disparity. See App. 81–85. Rather, the Court stated:

So having considered all of the [§] 3553(a) factors

and the treatment of the co-defendants in the case,

I’m going to accept the Government’s
 The District Court had jurisdiction under 18 U.S.C. 2

§ 3231. We have appellate jurisdiction under 28 U.S.C. § 1291

and 18 U.S.C. § 3742(a). See United States v. Lloyd, 469 F.3d

319, 321 (3d Cir. 2006). The Government argues that we lack

appellate jurisdiction to review the extent of the District Court’s

downward departure. Government’s Br. 2, 10–11. This

argument is irrelevant, however, because Sevilla clearly

challenges only the District Court’s failure in setting his

sentence to address his arguments for a lower sentence under §

3553(a). See Sevilla’s Br. 2 (framing issue as “Whether the

District Court Failed to Meaningfully Consider the Relevant

Factors Under Section 3553(a) of the Sentencing Reform Act of

1984”).

8

recommendation and sentence the defendant,

assuming a criminal history category three and a

guideline range based on the downward departure

motion of 70 months to 87 months, I’m going to

sentence him to 72 months.

App. 82. Sevilla appeals his sentence to challenge these

omissions.2

II. Standard of Review

We review the District Court’s sentence for abuse of

discretion. United States v. Gall, 128 S. Ct. 586, 597 (2007). In

this regard, “our role is two-fold.” United States v. Wise, 515

F.3d 207, 217 (3d Cir. 2008). We must “first ensure that the
9

district court committed no significant procedural error”—for

instance, by “failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing

to consider the § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the

chosen sentence—including an explanation for any deviation

from the Guidelines range.” Gall, 128 S. Ct. at 597; Wise, 515

F.3d at 217. Second, “[i]f we determine that the district court

has committed no significant procedural error, we then review

the substantive reasonableness of the sentence under an abuseof-discretion standard, regardless of whether it falls within the

Guidelines range.” Wise, 515 F.3d at 218; see also Gall, 128 S.

Ct. at 597. Because we perceive a procedural error that requires

resentencing in this case, we do not address the issue of

substantive reasonableness.

Our Court’s decision in United States v. Gunter requires

district courts to follow a three-step sentencing procedure:

(1) Courts must continue to calculate a

defendant’s Guidelines sentence precisely as they

would have before [United State v. Booker, 543

U.S. 220 (2005)].

(2) In doing so, they must formally rule on the

motions of both parties and state on the record

whether they are granting a departure and how

that departure affects the Guidelines calculation,
10

and take into account our Circuit’s pre-Booker

case law, which continues to have advisory force.

(3) Finally, they are required to exercise their

discretion by considering the relevant § 3553(a)

factors in setting the sentence they impose

regardless whether it varies from the sentence

calculated under the Guidelines.

462 F.3d 237, 247 (3d Cir. 2006) (internal citations, quotation

marks, and brackets omitted). As noted above, it is undisputed

here that the District Court complied with steps one and two: it

calculated the Guidelines range and formally ruled on the

Government’s motion for a downward departure under U.S.S.G.

§ 5K1.1. The parties disagree, however, whether the District

Court complied with step three in light of its failure to address

some of Sevilla’s arguments for a lower sentence.

A. We Review for Meaningful Consideration, Not

Plain Error

The Government argues that, because Sevilla failed to

object to the District Court’s omissions at close of sentencing,

we must review those omissions for plain error. See
 Several of our sister courts of appeals have applied 3

plain error review to unpreserved allegations that the district

court did not explain its discretionary sentence adequately. See,

e.g., United States v. Penson, 526 F.3d 331, 337 (6th Cir. 2008);

United States v. Peltier, 505 F.3d 389, 391–94 (5th Cir. 2007);

United States v. Villafuerte, 502 F.3d 204, 208–09 (2d Cir.

2007); United States v. Romero, 491 F.3d 1173, 1176–77 (10th

Cir. 2007); United States v. Gilman, 478 F.3d 440, 447 (1st Cir.

2007); United States v. Sylvester Norman Knows His Gun, III,

438 F.3d 913, 918 (9th Cir. 2006). Other courts seem to

disagree with this approach, however, reviewing for

reasonableness. See, e.g., United States v. Dale, 498 F.3d 604,

610 n.5, 611–12 (7th Cir. 2007); United States v. Swehla, 442

F.3d 1143, 1145 (8th Cir. 2006) (arguably in conflict with

United States v. Bistrup, 449 F.3d 873, 883–84 (8th Cir. 2006)

(unpreserved objection to district court’s explanation reviewed

for plain error)); United States v. Williams, 438 F.3d 1272, 1274

(11th Cir. 2006).

11

Government’s Br. 2–3. We disagree. Our Court’s en banc 3

decision in United States v. Grier precludes this argument. See

475 F.3d 556 (2007) (en banc). There, the defendant failed to

object at sentencing after the District Court’s conclusory

explanation that it “believes that 100 months is reasonable in

view of the considerations of [18 U.S.C. §] 3553(a).” Id. at 561

(alteration in original). We nonetheless reviewed, and not for

plain error, the District Judge’s conclusory explanation to

determine whether she gave meaningful consideration to the

relevant factors, because “[a]n objection to the reasonableness
12

of the final sentence will be preserved if, during sentencing

proceedings, the defendant properly raised a meritorious factual

or legal issue relating to one or more of the factors enumerated

in 18 U.S.C. § 3553(a).” Id. at 571 & n.11. We ultimately

concluded the Court’s explanation was insufficient, as it was

“devoid of substantive content and offer[ed] little assistance to

an appellate tribunal.” Id. at 571. Accordingly, we remanded

the case for resentencing. Id. at 572.

We are mindful of cases in our Court that arguably

suggest that plain error review applies where a defendant fails

to object to a district court’s explanation of its sentence. See,

e.g., United States v. Dragon, 471 F.3d 501, 505 (3d Cir. 2006)

(“[The defendant] claims his sentence is unreasonable under

Booker because the District Court failed to adequately consider

the parsimony provision of 3553(a), which directs the court to

‘impose a sentence sufficient, but not greater than necessary[,]’

to comply with the purposes specified in the statute. Because

[the defendant] did not raise this objection at the sentencing

hearing, we review his claim for plain error.”); Lloyd, 469 F.3d

at 325–26 (stating that defendant “did not advance” in the

district court his contention that the district court was obligated

to state its reasoning under § 3553(c)(1), and concluding that the

district court’s explanation “could not rise to the level of plain

error or, indeed, any error at all”); United States v. Parker, 462

F.3d 273, 278–79 (3d Cir. 2006) (stating that, because the

defendant did not object before the district court to its

explanation of the sentence under § 3553(c), the court of appeals
13

would “review this claim for plain error,” and concluding that

the district court “did not plainly err” in commenting on the

§ 3553(a) factors).

Even assuming those decisions conflict with our later

decision in Grier, however, we must follow Grier. As an en

banc opinion, Grier is intervening and controlling authority.

See Reich v. D.M. Sabia Co., 90 F.3d 854, 858 (3d Cir. 1996)

(“Although a panel of this court is bound by, and lacks authority

to overrule, a [precedential] decision of a prior panel, a panel

may reevaluate a precedent in light of intervening authority and

amendments to statutes or regulations.” (citation omitted)).

Here, Sevilla squarely raised his difficult childhood and

the crack/powder disparity, both in his sentencing memorandum

and at his sentencing hearing. Under Grier, then, the District

Court’s failure to address those issues did not require Sevilla to

re-raise them to avert plain error review of these omissions.

B. Meaningful Consideration Review

“To determine if the [district] court acted reasonably in

imposing the resulting sentence, we must first be satisfied the

court exercised its discretion by considering the relevant

factors.” United States v. Cooper, 437 F.3d 324, 329 (3d Cir.

2006). As we explained in Cooper:

The record must demonstrate the trial court gave
14

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 as to each of the § 3553(a) factors if the

record makes clear the court took the factors into

account in sentencing. . . .

On the other hand, a rote statement of the

§ 3553(a) factors should not suffice if at

sentencing either the defendant or the prosecution

properly raises “a ground of recognized legal

merit (provided it has a factual basis)” and the

court fails to address it. . . . 

On this issue, we disagree with the

decision of the Court of Appeals for the Eleventh

Circuit in United States v. Scott, [426 F.3d 1324,

1329–30 (11th Cir. 2005),] where the court held

a district court’s statement that it considered both

the defendant’s arguments and the § 3553(a)

factors at sentencing is by itself sufficient for

Booker purposes.

Id. at 329 & n.6 (internal citations omitted); see also Grier, 475

F.3d at 571–72 (“The record must disclose meaningful

consideration of the relevant statutory factors and the exercise

of independent judgment, based on a weighing of the relevant
 We have held that “[a]lthough § 3553(a) does not 4

require district courts to consider sentencing disparity among codefendants, it also does not prohibit them from doing so.”

Parker, 462 F.3d at 277.

The Supreme Court’s decision in Kimbrough v United 5

States, U.S. , 128 S.Ct. 558, 575 (2007) — and our Court’s

sequel decision in United States v. Gunter, 527 F.3d 282, 286

(3d Cir. 2008), as well as United States v. Ricks, 494 F.3d 394,

402-03 (3d Cir. 2007) — make clear that any determination at

15

factors, in arriving at a final sentence.”); United States v.

Jackson, 467 F.3d 834, 842 (3d Cir. 2006) (“Merely reciting the

§ 3553(a) factors, saying that counsel’s arguments have been

considered, and then declaring a sentence, are insufficient to

withstand our reasonableness review.”); United States v. King,

454 F.3d 187, 196–97 (3d Cir. 2006) (stating that district courts

“should observe the requirement to state adequate reasons for a

sentence on the record so that this court can engage in

meaningful appellate review”).

III. The District Court’s Explanation Requires Remand

Here, the record does not indicate that the District Court

considered the § 3553(a) factors at Gunter’s step three.

Although the Court considered Sevilla’s role in the crime

compared to that of his co-conspirators, it did not address 4

Sevilla’s colorable arguments relating to his childhood and the

crack/powder disparity other than to say that it had “considered 5
step three that the crack/powder cocaine disparity is “too vast,”

id. at 403, must give reasons that relate to the particular

defendant and not be a categorical rejection of that disparity.

16

all of the [§] 3553(a) factors.” Given that “a rote statement of

the § 3553(a) factors should not suffice if at sentencing either

the defendant or the prosecution properly raises a ground of

recognized legal merit (provided it has a factual basis) and the

court fails to address it,” Cooper, 437 F.3d at 329 (internal

quotation marks omitted), these omissions require remand. As

in Grier, however, “[w]e do not suggest that the original

sentence reflects anything less than the sound judgment of the

District Judge, or that the final sentence should necessarily

differ from the one previously imposed.” 475 F.3d at 572.

IV. Conclusion

For the foregoing reasons, we vacate Sevilla’s sentence

and remand for resentencing.