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


7-10-2006

USA v. Brooks
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2337




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"USA v. Brooks" (2006). 2006 Decisions. Paper 769.
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                                                                 NOT PRECEDENTIAL



                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                       No: 05-2337

                            UNITED STATES OF AMERICA
                                             v.
                                     JOHN BROOKS
                        Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                             District Court No: 03-cr-00041-2

                        District Judge: Honorable John E. Jones, III

                      Submitted Pursuant to Third Circuit LAR 34.1(a)
                                      May 18, 2006

                                Before: SCIRICA, McKEE,
                           and STAPLETON, Circuit Judges.

                              (Opinion filed: July 10, 2006)

                                        OPINION

McKEE, Circuit Judge.


          John Brooks appeals the consecutive sentence the district court imposed

following his guilty plea. For the reasons that follow, we will affirm.

   Since we are writing primarily for the parties who are familiar with this dispute, we

need not set forth its procedural or factual background. We have jurisdiction to review

the final judgment of conviction pursuant to 28 U.S.C. § 1291, and 18 U.S.C. §
3742(a)(1) (authorizing review of sentences imposed “in violation of law.”). See United

States v. Cooper, 

, 327 (3d. Cir., 2006).

   Brooks’ appeal requires only brief discussion because the law is absolutely clear that a

sentencing judge has discretion to sentence a defendant to imprisonment that is

consecutive to a term of imprisonment imposed for an unrelated state conviction after

appropriate inquiry.1 With certain exceptions not relevant here, 18 U.S.C. § 3584(a)

specifically authorizes a sentencing court to impose consecutive sentences.2

   Brooks argues that the district court made insufficient findings to justify a consecutive

sentence, and that the court failed to address all of the directives of 18 U.S.C. §3553(a) in

ordering that his sentence be consecutive. See Appellant’s Br. at 15.

       18 U.S.C. § 3584(a) provides that “in determining whether the terms imposed are

to be ordered to run concurrently or consecutively, [the sentencing court] shall consider,

as to each offense for which a term of imprisonment is being imposed, the factors set

forth in section 3553(a).” 18 U.S.C. § 3553(a) includes the sentencing range determined

pursuant to the Sentencing Guidelines as one of the factors that should be considered



       1
         “Trial courts traditionally exercised discretion to impose consecutive or
concurrent sentences as required by the facts of the case. Congress restricted this power
somewhat in the Sentencing Reform Act, but recognized that judges still retain substantial
discretion.” United States v. Velasquez, 

, 241 (3d. Cir. 200).
       2
          See, United States v. Velasquez, 

, 243 (3d. Cir. 2002) for a discussion of
the sentencing courts’ authority to impose consecutive sentences under the Sentencing
Guidelines and relevant provisions of Title 18. Although Velasquez was decided before Booker,
our discussion there remains relevant.

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before imposing a sentence. Thus, although the Guidelines are no longer mandatory

given the Supreme Court’s decision in United States v. Booker, 

(2005), they

still play a role in sentencing. See United States v. 

.

       U.S.S.G. § 5G1.3 (“Imposition of a Sentence on a Defendant Subject to an

Undischarged Term of Imprisonment”) sets forth various factors that a sentencing court

should consider in deciding whether to impose a sentence concurrent with, or consecutive

to, a previously imposed state sentence.

       In imposing the consecutive sentence here, the district court considered the nature

and the circumstances of the offense and the defendant’s history and characteristics, as

well as the need for the sentence to reflect the seriousness of the current offense, promote

respect for law , and protect the public.

       Pursuant to U.S.S.G. § 5G1 the court also considered the type and length of the

undischarged sentence. The district court specifically noted that the minimum date for

Brooks’ state sentence was December 2006. The court then discussed the time served on

that undischarged sentence and noted that Brooks was receiving credit on his federal

sentence from the time the sentence was lodged, as required by subsection (iii).

       After considering the factors that specifically applied to Brooks, the district court

explained that a concurrent sentence would neither adequately punish the violation of

federal law, nor be reasonable given Brooks’ extensive criminal record. App. at 25a.

       As noted at the outset, Brooks agues that the district court’s explanation of the


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sentence that was imposed was not sufficient to justify imposing a consecutive sentence.

However, we have never required a sentencing court to methodically recite the language

of the applicable statute or Guideline when imposing a sentence. “[N]othing in the

language of section 5G1.3© or its Commentary requires district courts to make specific

findings with respect to any or all of the factors listed in the Commentary or 18 U.SC. §

3553(a).” United States v. Saintville, 

, 249 (3d Cir. 2000) (brackets and

internal quotation marks omitted).

       Imposing a fully concurrent sentence here would have allowed Brooks to escape

punishment for his federal offense. Although there are clearly situations where such a

sentence would be appropriate, we agree with the court’s determination that this is not

such a case. Brooks’ challenge to his consecutive sentence is nothing more than an

attempt to manufacture a sentencing error out of the fact that the court exercised its

discretion to impose a consecutive sentence, even though the court did so in a careful and

studied manner that was consistent with the requirements of 18 U.S.C. § 3553, and the

Sentencing Guidelines. “[I]n view of the extensive pre-sentence report and the

sentencing colloquy, we are confident that the court considered the applicable statutory

sentencing factors and was cognizant of the germane information it needed ‘to achieve a

reasonable punishment’ for the offense involved and made its determination on that basis.

See section 5G1.3©.” United States v. Saintville, 

, 249 (3d. Cir. 2000).

       Accordingly, we will affirm the judgment of sentence.


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