Filed: Jun. 01, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 6-1-2006 USA v. Festus Precedential or Non-Precedential: Non-Precedential Docket No. 04-3599 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "USA v. Festus" (2006). 2006 Decisions. Paper 985. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/985 This decision is brought to you for free and open access by the Opinions of the United States
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 6-1-2006 USA v. Festus Precedential or Non-Precedential: Non-Precedential Docket No. 04-3599 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "USA v. Festus" (2006). 2006 Decisions. Paper 985. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/985 This decision is brought to you for free and open access by the Opinions of the United States C..
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
6-1-2006
USA v. Festus
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3599
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"USA v. Festus" (2006). 2006 Decisions. Paper 985.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/985
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 04-3599
__________
UNITED STATES OF AMERICA,
vs.
RASHEEM FESTUS
Appellant.
__________
On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(No. 03-cr-00025)
District Judge: Honorable Michael M. Baylson
__________
Submitted Under Third Circuit L.A.R. 34.1(a)
May 16, 2006
___________
Before: MCKEE and GARTH, Circuit Judges, and LIFLAND, District Judge *
( Filed: June 1, 2006)
__________
OPINION
__________
*
The Honorable John C. Lifland, Senior District Judge for the District of New Jersey,
sitting by designation.
GARTH, Circuit Judge:
Rasheem Festus challenges his sentence pursuant to United States v. Booker, 543
U.S. 220 (2005), contending that the mandatory application of the sentencing guidelines
and the imposition of certain sentencing enhancements violated his Sixth Amendment
rights. He also contests, as an alternative to his constitutional argument, the
reasonableness of his sentence. We will affirm.1
We write only for the benefit of the parties, who are presumed to be well-versed
with the factual and procedural background. We thus proceed directly to our analysis,
turning first to the constitutional part of this appeal.
I.
On October 7, 2003, Festus pleaded guilty to possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1). At sentencing, Festus urged the
District Court to hold the sentencing guidelines unconstitutional pursuant to the Supreme
Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004). He also objected to
certain factual findings made by the District Court with respect to the sentencing
guidelines range. The District Court overruled the objections to its findings and declined
the invitation to invalidate the guidelines. The District Court thereupon imposed a
sentence of 105 months imprisonment, a term of supervised release of three years, a
1
The District Court had jurisdiction pursuant 18 U.S.C. § 3231. We have jurisdiction
pursuant to 18 U.S.C. § 3742(a).
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$1,500 fine, and a special assessment of $100. However, the District Court also issued
an alternative sentence in the event “the guidelines did not apply,” stating that it “would
impose the same sentence without the guidelines.”
Having been sentenced prior to Booker, Festus argues on appeal that this case
should be remanded for resentencing in accordance with United States v. Davis, 407 F.3d
162 (3d Cir. 2005) (en banc). We there held that defendants sentenced before Booker
should have their sentencing challenge “remand[ed] for consideration of the appropriate
sentence by the District Court in the first instance.”
Id. at 166. The government concedes
that the District Court committed two distinct errors at the sentencing hearing: viz.,
applying the guidelines as mandatory and engaging in impermissible judicial fact-finding.
The government argues, however, that remand is not necessary in light of the District
Court’s statement of an alternative sentence. We agree.
We have held, in United States v. Hill, 411 F.3d 425 (3d Cir. 2005), that “where . .
. a District Court clearly indicates that an alternative sentence would be identical to the
sentence imposed under the Guidelines,” a remand is not warranted, because “any error
that may attach to a defendant’s sentence under Booker is harmless.”
Id. at 426. Hill
effectively created an exception to the general remand procedure outlined in Davis. We
find that exception fully applicable here, as the District Court’s statement of an alternative
sentence possessed the requisite degree of clarity demanded by Hill. The District Court
noted, in unequivocal terms, that it would impose “the same sentence without the
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guidelines.”
Festus argues, however, that the District Court’s statement did not accurately
anticipate the Supreme Court’s reasoning in Booker, thereby placing this case outside the
ambit of the Hill exception. The District Court envisioned the sentencing guidelines as
having no application, whereas Booker rendered the guidelines advisory. We are not
persuaded by this argument, nor do we believe it distinguishes Hill from this case in any
material respect. The alternative sentence in Hill was based “on an indeterminate
sentencing scheme,” which, while perhaps being more vague, was no more accurate in
predicting the advisory scheme established by Booker. See Hill, 411 F.3d at 426; see also
United States v. Christopher,
415 F.3d 590, 593 (6th Cir. 2005) (holding any sentencing
error to be harmless, where district court issued an alternative sentence “in the event an
appellate court finds that the Sentencing Guidelines should not be applicable”); United
States v. Thompson,
408 F.3d 994, 996-97 (8th Cir. 2005) (holding that where district
court imposed identical alternative sentence in the event that the guidelines “are found to
be unconstitutional,” any sentencing error was harmless). We therefore hold, in
accordance with Hill, that any Booker error attaching to Festus’s sentence was harmless.
II.
Festus next challenges his sentence as unreasonable. He argues that the District
Court failed to adequately consider the relevant sentencing factors set forth in 18 U.S.C. §
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3553(a).2 This statutory challenge also proceeds under Booker, relying as it does upon the
Supreme Court’s command therein that appellate courts review federal criminal sentences
for reasonableness with regard for the § 3553(a) factors. See Booker, 543 U.S. at 261.
We conclude, for the reasons stated below, that the District Court adequately considered
the relevant § 3553(a) factors.
We note at the outset that the government has challenged our jurisdiction to review
the reasonableness of a sentence. That contention, whatever its merits, has been
foreclosed by our recent decision in United States v. Cooper, 437 F.3d 324 (3d Cir. 2006),
which was issued after briefing in this case had been completed. We there held that an
unreasonable sentence is “imposed in violation of law” under 18 U.S.C. § 3742(a)(1),
thus establishing our appellate jurisdiction under that provision to review the
2
The relevant factors are:
(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 . . . the applicable
category of offense committed by the applicable category of defendant as set forth in the
guidelines . . .
18 U.S.C. § 3553(a).
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reasonableness of a sentence.3 Id. at 327. Accordingly, contrary to the government’s
contention, we have jurisdiction under § 3742(a)(1) to review sentences for
reasonableness.
In Cooper, we also explained the substance of our post-Booker reasonableness
review:
The record must demonstrate the trial court gave 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. Nor will we 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. 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.
Id. at 329. We further noted that “it is less likely that a within-guidelines sentence, as
opposed to an outside-guidelines sentence, will be unreasonable.”
Id. at 331. Appellants
have the burden of demonstrating unreasonableness.
Id. at 332.
In this case, Festus has not met his burden of proving the sentence was
3
18 U.S.C. § 3742(a) provides:
A defendant may file a notice of appeal in the district court for review of an otherwise
final sentence if the sentence-
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the sentencing guidelines; or
(3) is greater than the sentence specified in the applicable guideline range . . . , or
(4) was imposed for an offense for which there is no sentencing guideline and is plainly
unreasonable.
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unreasonable. The District Court imposed a sentence within the guidelines range, albeit
at the highest end of that range, thus making a finding of unreasonableness less likely.4
The court also appropriately considered the sentencing arguments raised by both parties.
In addition, the record shows that the District Court took the relevant § 3553(a) factors
into account in sentencing. The District Court considered (1) the “horrible criminal
record,” see 18 U.S.C. § 3553(a)(1) (“the history and characteristics of the defendant”);
(2) the need “to look out for the public,” see 18 U.S.C. § 3553(a)(2)(A) (“the need for the
sentence imposed . . . to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense”); and (3) the fact that, in the court’s
judgment, Festus is “a dangerous person,” see 18 U.S.C. § 3553(a)(2)(C) (“the need for
the sentence imposed . . . to protect the public from further crimes of the defendant”).
While the District Court neither recited nor considered each and every § 3553(a) factor, it
was not required to do so. See Cooper, 437 F.3d at 329. We find that the District Court’s
judgment of sentence was reasonable under Booker.
III.
For the foregoing reasons, we will affirm the judgment of sentence.5
4
Compare U.S. v. Zapete-Garcia, --- F.3d ----, 2006 WL 1216670 (1st Cir. May 8, 2006)
(vacating unreasonably high sentence that was eight times the maximum specified by the
advisory guidelines); U.S. v. Davenport, --- F.3d ----,
2006 WL 1044476 (4th Cir. April 21,
2006) (holding that imposition of ten year sentence, which was more than three times the top of
the advisory guideline range, was unreasonable).
5
In doing so, we also grant the government’s motion to file a supplemental brief and deny
Festus’s summary remand motion.
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