2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-9-2006

USA v. Charles

Precedential or Non-Precedential: Precedential

Docket No. 05-5326

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Recommended Citation

"USA v. Charles" (2006). 2006 Decisions. Paper 144.

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 05-5326

 

UNITED STATES OF AMERICA

v.

RANDOLPH CHARLES,

Appellant

 

Appeal from the United States District Court

for the Middle District of Pennsylvania 

(D.C. Criminal Action No. 04-CR-00181)

District Judge: Honorable Malcolm Muir

 

Submitted Under Third Circuit LAR 34.1(a)

September 28, 2006
Honorable Jane A. Restani, Chief Judge, United States *

Court of International Trade, sitting by designation.

2

Before: McKEE and AMBRO, Circuit Judges

RESTANI, Chief Judge, Court of International Trade *

(Opinion filed November 9, 2006)

James V. Wade

 Federal Public Defender

Ronald Krauss

 Assistant Federal Public Defender-Appeals

Middle District of Pennsylvania

100 Chestnut Street, Suite 306

Harrisburg, PA 17101

Counsel for Appellant

Thomas A. Marino

 United States Attorney

Theodore B. Smith, III

 Assistant United States Attorney

 Chief, Criminal Appeals

United States Attorney’s Office

228 Walnut Street, Suite 220

Harrisburg, PA 17108

Counsel for Appellee
3

 

OPINION OF THE COURT

 

AMBRO, Circuit Judge

Randolph Charles appeals his sentence from a conviction

in the United States District Court for the Middle District of

Pennsylvania for possession of a prohibited object by an inmate.

At issue is whether his sentence—a prison term of 46 months,

which is at the highest end of the Federal Sentencing Guidelines

range for the underlying offense—is reasonable in light of

United States v. Booker, 543 U.S. 220 (2005). We review the

sentence for reasonableness and, for the reasons set forth below,

affirm it.

I. Facts and Procedural History

At the time of the underlying incident for which Charles

was convicted and sentenced, he was an inmate at the United

States Penitentiary in Lewisburg, Pennsylvania. On November

20, 2003, he submitted to a compulsory strip search conducted

by a correctional officer. During that search, the officer

discovered that Charles possessed a six-inch piece of sharpened

plastic (a plastic “knife”). On May 26, 2004, a grand jury

returned a one-count indictment for possession of a prohibited

object by an inmate in violation of 18 U.S.C. §§ 1791(a)(2),
The statute as referenced in the Judgment of the District 1

Court from which Charles appeals reads “18 U.S.C.

§§ 1791(a)(2), (d)(1)(B) & 2.” While the “& 2” reference is

unclear, we take it to mean § 1791(d)(2) (defining “destructive

device” according to its meaning at 18 U.S.C.

§ 921(a)(4)(B)–(C)).

Charles initially entered a plea of not guilty. However, 2

he subsequently withdrew that plea, submitted a statement that

he did not dispute the facts of the case as the Government

presented them, and pled guilty. 

4

(d)(1)(B) & (d)(2). Charles pled guilty to the charge at a plea 1

hearing before the District Court on July 21, 2004. 

2

Under the then-mandatory United States Sentencing

Guidelines, the District Judge determined that Charles was a

career offender, which placed him in a Guidelines imprisonment

range of 37 to 46 months, two to three years’ supervised release,

a fine of $4,000 to $40,000, and a mandatory special assessment

of $100. On September 1, 2004, the Judge waived all fines and

sentenced Charles to 46 months’ imprisonment, three years’

supervised release, and the mandatory $100 special assessment.

Charles appealed to us, arguing, inter alia, that

mandatory application of the Guidelines was unconstitutional.

We affirmed the judgment of conviction but remanded for

resentencing in accordance with Booker, which eliminated the
Those factors are: 3

(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;

(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 . . .;

5

mandatory aspect of the Guidelines. The District Court imposed

the same sentence as before. 

Charles is back before us on appeal. He asserts that the

sentence is unreasonable because the District Court failed to

articulate its consideration of the sentencing factors in 18 U.S.C.

§ 3553(a). He requests that we vacate the sentencing judgment 3
(5) any pertinent policy statement . . . issued by the

Sentencing Commission . . . that . . . 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 of the

offense.

18 U.S.C. § 3553(a).

The District Court had subject matter jurisdiction over 4

this case pursuant to 18 U.S.C. § 3231 (granting jurisdiction for

“offenses against the laws of the United States”). We have

jurisdiction to review Charles’s sentence for “reasonableness”

under 18 U.S.C. § 3742(a)(1) (authorizing the appeal of

sentences allegedly “imposed in violation of the law”) and 28

U.S.C. § 1291 (authorizing the appeal of final district court

decisions, including sentences). See United States v. Cooper,

437 F.3d 324, 327–28 & n. 4 (3d Cir. 2006).

6

and remand for resentencing.4

II. Standard of Review

After Booker, the Guidelines have only advisory force

and appellate courts must review sentences for reasonableness

according to the “relevant [Section 3553(a)] factors” that guide

sentencing. 543 U.S. at 234; cf. United States v. King, 454 F.3d

187, 194 (3d Cir. 2006); Cooper, 437 F.3d at 327–28. We have
Note that, since it is incorporated into § 3553(a)(4), the 5

Guidelines sentencing range became just one of several factors

a district court must consider at step three of the sentencing

analysis. See Booker, 543 U.S. at 234; Gunter, 462 F.3d at 247;

King, 454 F.3d at 194; Cooper, 437 F.3d at 331. 

7

interpreted Booker to require the following three steps: 

(1) Courts must continue to calculate a defendant’s

Guidelines sentence precisely as they would have before

Booker. 

(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, 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.

United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006)

(internal citations and quotations marks omitted); cf. King, 454 5

F.3d at 194; Cooper, 437 F.3d at 330; see also United States v.

Jackson, No. 05-4091, slip op. at 7–8 (3d Cir. Nov. 9, 2006).
8

III. Discussion

Charles argues that his sentence is unreasonable for three

reasons. First, he contends that the District Court failed to

consider all of the § 3553(a) factors by not “fully and explicitly

articulat[ing]” its reasons for imposing the sentence when it

stated that it “carefully considered” those factors. App. Br. at

11–12, 13–14. Second, he asserts that the Court violated

§ 3553(a)’s “Parsimony Provision”—that sentences be

“sufficient, but not greater than necessary,” to meet the purposes

of sentencing set out in § 3553(a)(2). App. Br. at 9, 14 (quoting

United States v. Brown, 356 F. Supp. 2d 470, 479 (M.D. Pa.

2005)). Third, he argues that the Court impermissibly imposed

a sentence that “failed to avoid unwarranted sentence

disparities,” in violation of § 3553(a)(6). App. Br. at 13.

Our recent post-Booker decisions dispose of Charles’s

arguments. We have held that, for us to assess reasonableness,

the record must demonstrate that the District Court gave

meaningful consideration to the “relevant [§ 3553(a)] factors.”

Cooper, 437 F.3d at 329 (emphasis added); see also Gunter, 462

F.3d at 247; King, 454 F.3d at 194. This demonstration does not

“require district judges to routinely state by rote that they have

read the Booker decision or that they know the sentencing

guidelines are now advisory.” Cooper, 437 F.3d at 329. Nor

does it require courts “to state on the record that [they] ha[ve]

explicitly considered each of the § 3553(a) factors or to discuss

each of the § 3553(a) factors.” Id. (quoting United States v.
Here, there were no motions for or against sentencing 6

departures. The District Court therefore had no occasion to

apply step two of the sentencing analysis. See Gunter, 462 F.3d

at 247 (requiring courts to “formally rul[e] on the motions of

both parties” regarding departures) (quoting King, 454 F.3d at

196); see also Jackson, supra at 9 & n.2 (clarifying the step two

requirements).

9

Scott, 426 F.3d 1324, 1329 (11th Cir. 2005)). Rather, courts

“should observe the requirement to state adequate reasons for a

sentence on the record so that [we] can engage in meaningful

appellate review.” King, 454 F.3d at 196–97; see also Jackson,

supra at 17–19.

In this case, the District Court complied with steps one

and three laid out in Gunter by demonstrating that it considered

the Guidelines range, weighed the relevant § 3553(a) factors,

and exercised discretion in imposing a sentence. Pursuant to 6

step one of the Gunter analysis, the Judge determined the

applicable Sentencing Guidelines range for Charles’s offense.

The Judge found that Charles was a career offender because he

had committed a number of offenses before being

incarcerated—including possession of marijuana, criminal

conspiracy, delivery and possession with intent to deliver

cocaine, robbery, possession of crack cocaine, conspiracy to

interfere with interstate commerce by robbery, and interstate

transportation of stolen property; as well as a number of

offenses since being incarcerated—including possession of a
10

weapon, fighting, refusing to obey an order, being insolent to

staff, interfering with taking count of inmates, refusing to follow

directions, being in an unauthorized area, and assault. As a

career offender under the Guidelines who had admitted

culpability for his offense, Charles fit (as already noted) in a

Guidelinesimprisonment range of 36 to 47 months, a supervised

release term of two to three years, and a fine of $4,000 to

$40,000. See U.S.S.G. §§ 2P1.2(a)(2), 3E1.1(a), 4B1.1.

The Judge also held a resentencing hearing during which,

in accord with step three of Gunter, he discussed the sentencing

memoranda that he had requested each party to submit for his

consideration. At sentencing, the Judge explained that

[w]e have carefully considered all of the factors set forth

in 18 U.S.C. § 3553(a), including Defendant’s age,

family, physical and emotional condition, educational

and employment background, his prior criminal record,

and the advisory guideline imprisonment range of 37 to

46 months.

Charles is correct in asserting that a district judge who merely

states that he has “carefully considered” all § 3553(a) factors has

not met his or her burden for demonstrating reasonableness in

sentencing. See Cooper, 437 F.3d at 329 n.6 (“[W]e disagree

with the decision of the Court of Appeals for the Eleventh

Circuit[, which] held a district court’s statement that it

considered both the defendant’s arguments and the § 3553(a)
11

factors at sentencing is by itself sufficient for Booker

purposes.”) (citations omitted); see also Jackson, supra at 19. 

But the Judge in this case did more than that. In addition

to calculating the Guidelines range as required by step one of the

post-Bookersentencing process (and inferentially by subsection

(4) of § 3553(a)), the Judge reviewed Charles’s background and

his personal circumstances, as required by § 3553(a)(1), when

he noted that “[n]othing in Mr. Charles’s personal history

presents itself as a mitigating factor in this case.” The Judge

also noted, as outlined by § 3553(a)(2), that the seriousness of

Charles’s offense, his “propensity for violence,” and “sustained

criminal activities, both before and after being incarcerated,”

showed a “lack of respect for the law” that warranted a “severe

sentence” because his offense “threatened the security of the

entire institution, including staff and inmates.”

We have previously held that where a career offender

continues to violate the law even after conviction, the

consequences may be severe. See King, 454 F.3d at 195 (“A

lengthy prison sentence was clearly warranted in order to

prevent and deter King from reoffending, as well as to provide

adequate punishment for his conduct.”). In King, we reviewed

the reasonableness of a sentence for a career offender who had

received almost twice the maximum Guidelines range. We

nonetheless found the sentence to be reasonable because the

defendant’s record of continuing offenses was sufficiently

extensive to support an upward departure from the advisory
12

Guidelines range. King, 454 F.3d at 195. 

In this case, we are concerned with whether the record

supports a maximum Guidelines range sentence of 46 months.

The similarities between Charles and King suggest that it does.

Like King, Charles is a career offender whose actions warrant

a sentence sufficient to prevent and deter him from committing

the same crime in the future. The Court reasoned as much.

Furthermore, it acknowledged that the Guidelines are now

“advisory.” In addition, after considering Charles’s personal

circumstances, the Court explicitly chose not to impose a fine.

Taken together, the Court’s reasons satisfy us that it considered

the relevant § 3553(a) factors and exercised its discretion to

apply them reasonably. 

As for Charles’s second assertion that the District Court

violated the sufficient-but-not-greater-than-necessary

“Parsimony Provision” of § 3553(a), his argument fails in light

of our recent decisions. To meet the requirements of the

“Parsimony Provision,” he contends, the District Court should

have noted why a low-end Guidelines-range sentence (37

months) was insufficient to meet § 3553(a)(2)’s penological

goals. By demanding that the Court assume the burden of

proving that his sentence is not unreasonable, Charles attempts

to flip the reasonableness requirement on its head. We have

held that the defendant bears the burden of proving that the

sentence was unreasonable. Cooper, 437 F.3d at 332 & n.11

(quoting United States v. Cunningham, 429 F.3d 673, 679 (7th
 Clearly not comparable to Charles is one of the three 7

cases, where a one-time offender was sentenced to 12 months

and one day. See United States v. Hernandez-Hernandez, No.

4:CR-04-003 (M.D. Pa. filed May 11, 2004). In the other two

cases, career offenders received sentences of 41 months and 37

months, respectively. See United States v. Khari Hill, No.

4:CR-01-156 (M.D. Pa. filed Nov. 23, 2004); United States v .

Israel Flores-Martinez, No. 4:CR-03-58 (M.D. Pa. filed July 1,

2003). The disparities here are minor, consisting of only five to

nine months. We are in no position to determine—as a matter

13

Cir. 2005) (“[R]easonableness is a range, not a point. . . . If the

judge could, without abusing his discretion, have ruled in the

defendant’s favor, the defendant is entitled to insist that the

judge exercise discretion, though he cannot complain if the

exercise goes against him.”)). 

Finally, Charles’s third argument—that his sentence

creates “unwarranted sentence disparities”—is unpersuasive as

well. The “need to avoid unwarranted sentence disparities

among defendants with similar records who have been found

guilty of similar conduct,” 18 U.S.C. § 3553(a)(6), is just one

factor (if relevant) that should be balanced against the others

(again, if relevant). Charles concludes that his sentence will

create unwarranted disparities based on three District Court

cases from the Middle District of Pennsylvania where, preBooker, inmates received mid-range or below-range Guidelines

sentences for possession of knife-like objects. App. Br. at 13.7
of fact—whether Charles’s circumstances exactly paralleled

those of the defendants in these cases; we leave that

determination to the sentencing judge. What we do know

nonetheless is that these sentences on their surface do not appear

to fall outside a range of reasonableness.

14

As the Government correctly notes, Charles has not shown that

any of the defendants in the District Court cases to which he

cites are similarly situated to him for purposes of comparing

career offenders with a history of institutional misconduct, see

Gov’t Br. at 21, and therefore relevant for a § 3553(a)(6)

comparison. Even if he had, a mere similarity would not be

enough to overcome the high level of deference we accord

sentencing judges. See, e.g., Cooper, 437 F.3d at 330.

Moreover, we recently noted in Gunter that we will tolerate

statutory sentencing disparities so long as a judge demonstrates

that he or she viewed the Guidelines as advisory and reasonably

exercised his or her discretion after applying the three-step

sentencing process. See Gunter, 462 F.3d at 248–49. While any

alleged disparities in this case are non-statutory, they resulted

from the District Judge’s reasonable exercise of discretion after

considering the requisite three steps for calculating sentences as

applied to Charles’s particular circumstances. 

* * *

As the District Court adequately considered the relevant

§ 3553(a) factors in sentencing Charles, stated explicitly that the
15

Guidelines were advisory, and demonstrated the exercise of

discretion, it has reasonably applied the required sentencing

analysis under our post-Booker standards outlined in King,

Cooper, and Gunter. We therefore affirm.