Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-29-2006

USA v. Dragon
Precedential or Non-Precedential: Precedential

Docket No. 05-4906




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                                       PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                      No. 05-4906


           UNITED STATES OF AMERICA

                            v.

                 SHALON DRAGON,
                        Appellant



     On Appeal from the United States District Court
              for the District of New Jersey
              (D.N.J. Criminal No. 05-470)
      District Judge: Honorable Faith S. Hochberg


    Submitted Pursuant to Third Circuit LAR 34.1(a)
                  December 13, 2006




Before: FUENTES and VAN ANTWERPEN, Circuit Judges,
                      and PADOVA,*
                       District Judge.

                 (Filed December 29, 2006)



Richard Coughlin, Federal Public Defender
K. Anthony Thomas, Assistant Federal Public Defender
Louise Arkel
Office of the Public Defender
972 Broad Street, Fourth Floor
Newark, New Jersey 07102
       Counsel for Appellant


Christopher J. Christie, United States Attorney
George S. Leon, Chief, Appeals Division
Eric H. Jaso, Assistant United States Attorney
Office of the United States Attorney
970 Broad Street
Newark, New Jersey 07102
       Counsel for the United States

_____________________
*The Honorable John R. Padova, District Judge of the Eastern
District of Pennsylvania, sitting by designation.



                            ____

                              -2-
                     OPINION OF THE COURT


VAN ANTWERPEN, Circuit Judge.

       Defendant Shalon Dragon contends his criminal
sentence was unreasonable under United States v. Booker, 

, 

, 

(2005), because the
District Court did not adequately consider the so-called
parsimony provision of 18 U.S.C. § 3553(a)1 in reaching his
sentence. He also challenges the addition of two criminal-
history points assessed to him upon the District Court’s
finding that Dragon committed the crime of conviction while
on probation. We have jurisdiction to review Dragon’s
sentence pursuant to 18 U.S.C. § 3742(a). See United States

     1
      Courts have dubbed the prefatory language of 3553(a) “the
parsimony provision.” This provision states: “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
purposes set forth in paragraph (2) include:
        (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.
18 U.S.C. § 3553(a)(2).

                                 -3-
v. Cooper, 

, 327 (3d Cir. 2006). For the reasons
set forth below, we will affirm.

                              I.

        On June 13, 2005, pursuant to a plea agreement,
Dragon pleaded guilty to one count of unlawful use of a
means of identification of another with the intent to commit a
felony in violation of 18 U.S.C. §§ 1028(a)(7) and (b)(1)(D).
His conviction stemmed from an identity theft and fraud
scheme in which Dragon and his co-defendant, Casmore
Durham, procured and used false identification to charge
merchandise and gift cards to the accounts of 43 Macy’s
credit card holders at Macy’s department stores in New
Jersey, New York, and Pennsylvania. This scheme, which
lasted from January 2001 until Dragon’s arrest in December
2003, resulted in $106,990.23 worth of loss to Macy’s.

        On December 19, 2003, Dragon and Durham were
stopped by an officer of the Port Authority of New York and
New Jersey Police Department in Jersey City, New Jersey
after the officer received a complaint about a black Lexus by
a NJ Transit bus driver and then observed a black Lexus
driving erratically. After pulling the car over, the officer
specifically questioned Durham, the driver, about the Macy’s
packages in the back seat. Durham first said he bought the
items in New Jersey and then changed his story, telling the
officer he bought the items in Pennsylvania. Dragon and
Durham were taken into custody and then arrested when a
check revealed that each had two outstanding warrants. A
search of the car revealed the following items: several

                              -4-
fictitious New York State non-driver identification cards in
the names of various individuals but containing either Dragon
or Durham’s picture; records titled “Mount Sinai Medical
Center” listing names that matched those on the identification
cards, as well as additional identifying information, such as
addresses, dates of birth, and social security numbers; receipts
from Macy’s department stores located in New Jersey, New
York, and Pennsylvania; nineteen boxes of Timberland boots;
five Macy’s shopping bags containing new merchandise; and
one shopping bag containing two cellular phones.2

        On May 1, 2004, Dragon provided a statement
confessing the details of the scheme. He stated Durham
obtained the personal information of 45 hospital patients from
a contact he had at Mount Sinai Medical Center. Dragon and
Durham then obtained false identification cards from photo
stores in New York City, reflecting the patients’ names and
identifying information. They would then use the false
identification to charge merchandise and gift cards to the real
account-holder at Macy’s stores in New Jersey, New York,
and Pennsylvania.

       Dragon and the government entered into a plea
agreement with the following stipulations: Dragon would be
sentenced pursuant to the United States Sentencing
Guidelines (“the guidelines”); the applicable guideline was

   2
    The search also revealed twenty-eight clear small glassine
bags placed in a larger glassine bag. Jersey City Municipal
Court took possession of this evidence for a separate
adjudication.

                              -5-
§2B1.1, triggering a base offense level of six; an eight-level
enhancement applied based on the amount of loss (more than
$70,000 but less than $120,000); a two-level enhancement
applied based on the number of victims (ten or more); a two-
level enhancement applied based on the use of sophisticated
means to commit the offense; and a three-level reduction
applied for Dragon’s acceptance of responsibility.

       In the Presentence Investigation Report (“PSR”), the
probation officer assigned Dragon a total offense level of 15
and a criminal history category of V. In calculating Dragon’s
criminal history category, the probation officer added a two-
point enhancement because Dragon had committed the
offense of conviction while on probation. This calculation
resulted in a recommended guidelines range of 37 to 46
months’ imprisonment.

        On October 25, 2005, the District Court held a
sentencing hearing at which Dragon and the government
agreed that 37 to 46 months was the appropriate guidelines
range. Dragon argued for a sentence of 37 months based on
the fact that he is a young man who would be deported to
Grenada at the end of his sentence, and because he needed to
start earning a livelihood through lawful conduct. Arguing
for a sentence within the guidelines range, the government
emphasized the complexity of the fraud scheme, the
vulnerability of the victims, and Dragon’s lengthy criminal
history of fraud offenses.

       After hearing from Dragon’s counsel, Dragon himself,
and the government, the District Court imposed a sentence of

                              -6-
44 months, near the top of the guidelines range. In imposing
sentence, the District Court commented on the complexity of
the fraud scheme and the harm caused to victims of identity
theft. Moreover, the District Court emphasized the lenient
sentences Dragon received for similar offenses in the past and
the consequent need to sentence Dragon to “a serious term of
imprisonment” so that he would “learn how to do honest work
for an honest day’s pay.” App. at 30. The District Court
twice acknowledged Dragon’s request for leniency. It first
stated, “Mr. Dragon, you’re right you’re a young man, but
you’re a young man that’s found a pretty nifty way to get
extra cash with very little danger to yourself.” 

The
District Court later declared, “I also don’t believe that this is
the first time you’ve stood before a court, said you’re a young
man, said you’ve made a serious mistake, asked for leniency
and asked for another chance.” 

the sentence
imposed, the District Court expressly stated that it had
“considered the Sentencing Reform Act of 1984 . . . the
appropriate guidelines range . . . and all the factors in Section
3553(a).” 

                               II.

                               A.

        Dragon 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 Dragon did not raise this objection at the

                               -7-
sentencing hearing, we review his claim for plain error. See
Fed. R. Crim. P. 52(b); United States v. Olano, 

,
731-32, 

, 

(1993). Under this
standard, “[t]here must be an ‘error’ that is ‘plain’ and that
‘affect[s] substantial rights.’” 

(quoting
United States v. Young, 

, 15, 

, 

(1985)). An error is a “[d]eviation from a legal
rule[,]” and an error is “plain” if it is “clear” or “obvious.” 

734. Generally, an error affects substantial rights
when it is prejudicial, i.e., it “affected the outcome of the
district court proceedings.” 

Moreover, even if
such an error is found, “the court of appeals has the authority
to order correction, but is not required to do so.” 

We should exercise our discretion to correct the error only if
it “‘seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.’” 

(quoting
United States v. Atkinson, 

, 160, 

, 

(1936)).

        The District Court did not commit error, let alone plain
error, in reaching Dragon’s sentence. In Booker, the Supreme
Court directed the Courts of Appeals to review a District
Court’s imposition of a criminal sentence for 

. Subsequently, in United States v. Cooper, we
established the framework for such a review stating, “we must
first be satisfied the court exercised its discretion by
considering the relevant 

(citation
omitted). We explained that the court is not required to
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.” 

The court need

                                -8-
only discuss those grounds properly raised by the parties at
the time of sentencing. 

counsel for the parties
should clearly place the sentencing grounds they are raising
on the record at the time of the sentencing hearing.3 The
court is not required to manufacture grounds for the parties or
search for grounds not clearly raised on the record in a
concise and timely manner.

         Moreover, district court judges are not required “to
routinely state by rote that they have read the Booker decision
or that they know the sentencing guidelines are now
advisory.” 

fashion, judges need not routinely
state that they have read the entire guidelines manual or all
policy statements of the United States Sentencing
Commission. As we stated in Cooper, “[t]here are no magic
words that a district judge must invoke when sentencing,” as
long as the record shows “that the court considered the §
3553(a) factors and any sentencing grounds properly raised by
the parties which have recognized legal merit and factual
support in the record.” 

see also United States v.
Charles, 

, 831 (3d Cir. 2006). Courts need only
“‘state adequate reasons for a sentence on the record so that
[we] can engage in meaningful appellate review.’” 

(quoting United States v. King, 

,
196-97 (3d Cir. 2006)). In sum, we will not elevate form over
substance.

   3
    This does not mean that a court could not, by order or local
rule, require parties to make a written submission of all
sentencing grounds they plan on raising prior to a sentencing
hearing.

                              -9-
       Following the reasoning set forth in Cooper, we have
rejected an argument that the District Court is required to
articulate “why a low-end Guidelines-range sentence . . . was
insufficient to meet § 3553(a)(2)’s penological goals.” 

To this end, we hold that district judges are not required
by the parsimony provision to routinely state that the sentence
imposed is the minimum sentence necessary to achieve the
purposes set forth in § 3553(a)(2). We note that the First
Circuit considered this issue and reached the same result in
United States v. Navedo-Concepcion, stating, “we do not
think that the ‘not greater than necessary’ language requires
as a general matter that a judge, having explained why a
sentence has been chosen, also explain why some lighter
sentence is inadequate.” 

, 58 (1st Cir. 2006). As
we stated in Cooper, we review sentences for reasonableness
and look to the record to determine whether the court
adequately considered the relevant provisions of § 3553(a)
and any arguments properly presented by the parties which
have legal merit and a factual basis in the record.

        After considering the parties’ arguments at length, the
District Court imposed a sentence near the top of the
guidelines range, 44 months. The record shows the District
Court expressly mentioned § 3553(a), and the Court’s
discussion was consistent with the relevant provisions of §
3553(a). The District Court expressly acknowledged
Dragon’s request for leniency and addressed his argument that
a lighter sentence was appropriate because of his youth. In
imposing a higher sentence, the District Court emphasized
Dragon’s long history of fraudulent criminal conduct and the
fact that Dragon had been given “a second chance” by various

                             -10-
courts “over and over again.” App. at 30. In light of his
failure to take advantage of this past leniency, the District
Court found it necessary to sentence Dragon “to a serious
term of imprisonment.” 

record, we find the District Court gave
“meaningful consideration” to the relevant provisions of §
3553(a). 

. We afford deference to
the District Court because it is “in the best position to
determine the appropriate sentence in light of the particular
circumstances of the case.” 

(citation omitted).
And, we are mindful that sentencing judges, who “normally
state and resolve sentencing issues from the bench,” make
remarks that “are unlikely to be a perfect or complete
statement of all of the surrounding law.” 

n.8
(internal quotations and citations omitted).

                               B.

       Dragon also claims his sentence must be vacated
because the District Court’s finding that he committed the
crime of conviction while on probation was neither admitted
by him nor found by a jury beyond a reasonable doubt. This,
he claims, violates his Sixth Amendment rights. What
Dragon fails to realize, however, is that the remedial opinion
in Booker alleviated this constitutional problem by making the
guidelines advisory. After Booker, only those facts that
increase the statutory maximum penalty to which a defendant
is exposed must be admitted by the defendant or found by a
jury beyond a reasonable doubt. Because the guidelines are
no longer mandatory, the statutory maximum is the maximum

                              -11-
penalty provided for in the United States Code. See United
States v. Gunter, 

, 243 (3d Cir. 2006) (stating
that post-Booker, “district courts may fact-find to increase
sentences beyond the Guidelines range provided they are
within the statutory minimum and maximum dictated by the
United States Code”). And, “[a]s before Booker, the standard
of proof under the guidelines for sentencing facts [that do not
increase the statutory maximum] continues to be
preponderance of the evidence.” 

(citation omitted).

        Here, the District Court found by a preponderance of
the evidence that Dragon committed the crime of conviction
while on probation. This finding increased the guidelines
range from 30 to 37 months to 37 to 46 months. Dragon was
ultimately sentenced to 44 months. Significantly, the District
Court’s finding did not increase Dragon’s sentence beyond
the statutory maximum of 15 years’ imprisonment provided
for in 18 U.S.C. § 1028(b)(1)(D). Therefore, his sentence did
not violate the Sixth Amendment.

                              III.

       For the foregoing reasons, we conclude that the
District Court’s sentence was reasonable under Booker and
Cooper, and did not violate Dragon’s Sixth Amendment
rights. Accordingly, we will affirm the judgment of sentence.




                             -12-