NOT PRECEDENTIAL


UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                           No. 06-5083




                UNITED STATES OF AMERICA

                                 v.

                     MAXWELL DUNCAN,
                                Appellant




          On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
                  (D.C. No. 2-03-cr-00735-001)
           District Judge: Honorable Harvey Bartle, III




            Submitted Under Third Circuit LAR 34.1(a)
                       November 9, 2010

Before: McKEE, Chief Judge, SLOVITER, and COWEN, Circuit Judges.

                   (Filed: November 10, 2010)

                             _______

                            OPINION
SLOVITER, Circuit Judge.

       In October 2004, a jury found Maxwell Duncan guilty of twenty counts of wire

fraud, committed in violation of 18 U.S.C. § 1343. The District Court sentenced Duncan

to thirty-seven (37) months imprisonment on each count to be served concurrently,

followed by three years supervised release, and ordered Duncan to pay $95,400 in

restitution and a $2,000 penalty due immediately. In United States v. Duncan, 197 F.

App’x 94, 98 (3d Cir. 2006), we vacated and remanded his sentence in light of United

States v. Booker, 

(2005). Upon remand, the District Court resentenced

Duncan to the same terms as previously imposed. Duncan appeals, arguing that his

sentence is substantively unreasonable.1 We review for an abuse of discretion, keeping in

mind that “[a]s long as a sentence falls within the broad range of possible sentences that

can be considered reasonable in light of [18 U.S.C. §] 3553(a) factors, we must affirm.” 2

United States v. Lopez-Reyes, 

, 670 (3d Cir. 2009) (quotation and citation

omitted).


            1
              Duncan does not assert his sentence was procedurally
            unreasonable, nor could he. The District Court properly
            calculated Duncan’s offense level under the guidelines, and
            acknowledged their advisory nature. See United States v.
            Tomko, 

, 567 (3d Cir. 2009). The Court also
            explained its chosen sentence, which was not selected based on a
            clearly erroneous fact, and meaningfully considered the factors
            in 18 U.S.C. § 3553(a). See 

District Court had jurisdiction under 18 U.S.C. § 3231,
            and we have jurisdiction under 18 U.S.C. §§ 1291 and 3742(a).


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        Duncan’s thirty-seven (37) month sentence of imprisonment was at the high end

of, although still within, the Guideline range. “A sentence that falls within the

recommended Guidelines range, while not presumptively reasonable, is less likely to be

unreasonable than a sentence outside the range.” United States v. Lessner, 

,

204 (3d Cir. 2007). Nothing precludes a resentencing court from imposing the same

sentence or even a greater sentence than it did initially. See, e.g., United States v. Medley,

, 840 (10th Cir. 2007); United States v. Huber, 

, 949 (8th Cir.

2006). In our remand we did not suggest that we had any problem with the sentence as

such.

        Duncan asserts that the sentence is unreasonable because it was greater than

necessary to achieve the statutory goal of sentencing, as proscribed by the overarching

instruction of the parsimony provision of 18 U.S.C. § 3553(a). See 18 U.S.C. § 3553(a)

(“The court shall impose a sentence sufficient, but not greater than necessary, to comply

with the purposes set forth in paragraph (2) . . . .”); see generally United States v.

Olhovsky, 

, 548 (3d Cir. 2009). He emphasizes that the District Court failed

to accord adequate weight to his lack of a criminal history, especially in consideration of

the need to protect the public. See 18 U.S.C. § 3553(a)(2)(C). The decision by the Court

not to give this factor the weight Duncan contends it deserves does not by itself render his

sentence unreasonable. See 

. The appropriate inquiry is whether

the District Court’s sentence “was premised upon appropriate and judicious consideration



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of the relevant factors.” 

citation omitted).

       At the resentencing hearing, the District Court heard argument from both Duncan

and his counsel, who emphasized Duncan’s lack of criminal history. The Court also

heard from counsel for the Government, who responded that Duncan’s “[l]ack of any

criminal history does not change the fact that this was a serious offense that [Duncan]

committed,” App. at A6, and reminded the Court that Duncan had committed perjury

during his trial and produced false documents to the court. The District Court explicitly

stated that it agreed with the Government, noting that Duncan’s crime was indeed “very

serious” in that he “defrauded a religious institution,” “prayed on unsuspecting people,

unsophisticated people,” and that Duncan “had the sophistication . . . and took advantage

of them.” App. at A10-11.

       The District Court addressed the parsimony provision of 18 U.S.C. § 3553(a),

recognizing that it was required to sentence Duncan “in a way that would be sufficient but

not greater than necessary[.]” App. at A10. It concluded that “the sentence of 37 months

is necessary to provide a just punishment for these offenses[,]” and also found that “the

seriousness of the offenses, [and] the need to promote respect for law” justified the term.

was not required to state “that the sentence imposed is the minimum

sentence necessary to achieve the purposes set forth in [18 U.S.C.] § 3553(a)(2).” United

States v. Dragon, 

, 506 (3d Cir. 2006). The record demonstrates that the



                                              4
District Court’s sentence “was premised upon appropriate and judicious consideration of

the relevant factors,” 

(quotation omitted), and was therefore

substantively reasonable. Accordingly, we will affirm.




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