Filed: Jul. 12, 2007
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 7-12-2007 USA v. Clarke Precedential or Non-Precedential: Non-Precedential Docket No. 06-3124 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "USA v. Clarke" (2007). 2007 Decisions. Paper 777. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/777 This decision is brought to you for free and open access by the Opinions of the United States
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 7-12-2007 USA v. Clarke Precedential or Non-Precedential: Non-Precedential Docket No. 06-3124 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "USA v. Clarke" (2007). 2007 Decisions. Paper 777. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/777 This decision is brought to you for free and open access by the Opinions of the United States ..
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
7-12-2007
USA v. Clarke
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3124
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"USA v. Clarke" (2007). 2007 Decisions. Paper 777.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/777
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 2007 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NOT PRECEDENTIAL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. 06-3124
UNITED STATES OF AMERICA
v.
BRYAN EUGENE CLARKE, JR.
Brian Clarke,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 05-cr-00902)
District Judge: Honorable Jose L. Linares
Submitted Under Third Circuit LAR 34.1(a)
July 9, 2007
Before: SLOVITER, HARDIMAN, and ROTH, Circuit Judges
(Filed July 12, 2007)
OPINION
SLOVITER, Circuit Judge.
Appellant Brian Clarke pled guilty pursuant to a plea agreement to two offenses,
carjacking, in violation of 18 U.S.C. § 2119(2), and use of a firearm during a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The plea agreement contained a
waiver of appeal except that it reserved Clarke’s right to appeal the sentencing court’s
determination of his criminal history category.1 Clarke concedes that he committed
offenses while he was an adolescent that the District Court could properly take into
account under the Sentencing Guidelines in setting his sentence. His claim is limited to
the argument that the District Court abused its discretion and imposed an unreasonable
sentence by its “strict adherence to the Sentencing Guidelines.” Appellant’s Br. at 4.
The Government argues that we do not have jurisdiction over this appeal. We
recently rejected the Government’s argument in United States v. Gwinnett, 483 F.3d 200,
203 (3d Cir. 2007), where we held that we retain subject matter jurisdiction over an
appeal by a defendant who has signed an appellate waiver. We stated, however, that
“[this Court] will not exercise that jurisdiction to review the merits of [a defendant’s]
appeal if we conclude that [defendant] knowingly and voluntarily waived [his] right to
appeal unless the result would work a miscarriage of justice.”
Id.
Our task, therefore, is to determine whether Clarke knowingly and voluntarily
1
The District Court of New Jersey had jurisdiction of this
case pursuant to 18 U.S.C. § 3231. This court has jurisdiction
based on 28 U.S.C. § 1291.
2
signed the waiver. The plea agreement that Clarke signed states:
Waiver of Appeal and Post-Sentencing Rights
As set forth in Schedule A, this Office and Bryan Clarke waive certain
rights to file an appeal, collateral attack, writ or motion after sentencing,
including but not limited to an appeal under 18 U.S.C. § 3742 or a motion
under 28 U.S.C. § 2255.
Schedule A provides, inter alia:
15. Bryan Clarke knows that he has and, except as noted below in this
paragraph, voluntarily waives, the right to file any appeal, any collateral
attack, or any other writ or motion, including but not limited to an appeal
under 18 U.S.C. § 3742 or a motion under 28 U.S.C. § 2255, which
challenges the sentence imposed by the sentencing court if that sentence
falls within or below the Guidelines range that results from the agreed total
Guidelines offense level of 23, plus an additional seven years imprisonment
for the violation of 18 U.S.C. 924(c). This Office will not file any appeal,
motion or writ which challenges the sentence imposed by the sentencing
court if that sentence falls within or above the Guidelines range that results
from the agreed total Guidelines offense level of 23, plus an additional
seven years imprisonment for the violation of 18 U.S.C. 924(c). The
parties reserve any right they may have under 18 U.S.C. § 3742 to
appeal the sentencing court’s determination of the criminal history
category. The provisions of this paragraph are binding on the parties even
if the Court employs a Guidelines analysis different from that situated to
herein. Furthermore, if the sentencing court accepts a stipulation, both
parties waive the right to file an appeal, collateral attack, writ, or motion
claiming that the sentencing court erred in doing so.
16. Both parties reserve the right to oppose or move to dismiss any appeal,
collateral attack, writ, or motion barred by the preceding paragraph and to
file or to oppose any appeal collateral attack, writ or motion not barred by
the preceding paragraph.
(emphasis added). App. Ex. C at 8.
The Government contends that although the language of the waiver appears to
reserve Clarke’s right to appeal the sentencing court’s determination of his criminal
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history, Clarke waived his right to appeal because:
At sentencing, the District Court confirmed that Clarke had no quarrel with
the Probation Office’s calculation of his Criminal History Category, but
rather that he was seeking a downward departure under U.S.S.G. § 4A1.3,
arguing that the resulting Criminal History Category over-represented the
seriousness of his criminal history and likelihood of recidivism. By
expressly agreeing with the PSR’s calculation of his Criminal History
Category, Clarke waived any right to challenge the District Court’s
determination on appeal.
Gov’t Br. at 27.
Clarke did indeed object to the Criminal History Category. The addendum to the
Presentence Report contains an objection by Clark that “the use of [the] juvenile criminal
convictions improperly increases [his] Criminal History Category. Consequently, this
over-represents the likelihood that, as an adult, Clarke would recidivate.” App. Ex. D at
26. Additionally, Clarke argues that he made a formal objection to the inclusion of his
juvenile record in the calculation of his Criminal History Category. Accordingly, Clarke
is free to bring an appeal under 18 U.S.C. § 3742, specifically subsections (a)(2) and
(a)(4), which he claims are applicable to his case.
With regard to subsection (a)(2) of 18 U.S.C. § 3742, which permits a challenge to
a sentence that “was imposed as a result of an incorrect application of the sentencing
guidelines,” Clarke argues that “the use of his juvenile convictions to increase his
sentence, without due consideration of the provisions of Title 18 U.S.C. § 3553(a) –
including facts and circumstances regarding his age and his personal family history at the
time of his juvenile offenses – yielded a sentence that was ‘imposed as a result of an
4
incorrect application of the sentencing guidelines.’” Appellant’s Reply Br. at 6.
Furthermore, Clarke alleges he has a valid appeal under subsection (a)(4), which permits
a challenge that the sentence “was imposed for an offense for which there is no sentence
guideline and is plainly unreasonable.” 18 U.S.C. § 3742(a)(4). Clarke argues that his
sentence was determined by
one count – for which sentencing would be guided by an applicable
guideline – and then expanded by a mandatory minimum seven year
consecutive sentence, that would be imposed without an applicable
guidelines determinate of its length . . . . The resultant sentence in his case,
effectively, was not completely guided by [] sentencing provisions.
Appellant’s Reply Br. at 6-7.
We have held that in evaluating the reasonableness of a sentence, we must
determine whether: (1) the sentencing court gave “meaningful consideration” to the §
3553(a) factors and any meritorious grounds properly raised by the parties; and (2)
whether those factors were “reasonably applied to the circumstances of the case.” United
States v. Cooper, 437 F.3d 324, 329-30 (3d Cir. 2006). We apply a deferential standard,
as “the trial court [is] in the best position to determine the appropriate sentence in light of
the particular circumstances of the case.”
Id. at 330. Not only is “a within-guidelines
range sentence more likely to be reasonable than one that lies outside the advisory
guidelines range,” but the party challenging the sentence bears the burden to show
unreasonableness.
Id. at 331-32.
In denying Clarke’s motion for a downward departure, the District Court noted
that the juvenile offenses Clarke committed “are not of the type that one could
5
characterize as youthful indiscretion and misstep.” App. Ex. E at 23. At age 14, he was
convicted as a juvenile for aggravated assault and robbery; at age 15, he was part of a
group that robbed and severely beat an elderly man; at age 17, he was convicted of third-
degree assault on a fellow inmate at the youth detention facility, and at age 20, he and
another man stole a car at gunpoint. He was thereafter convicted of third-degree criminal
possession of stolen property. As authorized by the Guidelines, the District Court
assessed two criminal history points for three of Clarke’s juvenile offenses and another
two criminal history points for his conviction as an adult for possession of stolen
property.
Finally, the District Court noted the seriousness of the offense at issue, carjacking
a woman’s car after putting a gun to her head, grabbing her purse and necklace,
demanding her car keys and striking her across the forehead with the gun and knocking
her to the ground. The District Court described the carjacking as “a very heinous and
violent crime,” which will cause the victim psychological trauma. App. Ex. E at 26.
The parties agree that the total offense level for the carjacking offense was 23, and
that a seven-year consecutive sentence was required for Count II. Because Clarke had a
Criminal History of IV, the District Court sentenced him to 75 months imprisonment for
Count I and a consecutive term of 84 months imprisonment for Count II.
We are satisfied that the District Court took into consideration the relevant §
3553(a) factors as they applied to Clarke’s circumstances, that the Court did not abuse its
discretion in setting the Criminal History Category, and that the District Court’s sentence
6
was reasonable.2
We will affirm the judgment of sentence.
2
The Government argues that essentially Clarke
“challenges the ‘reasonableness’ of his sentence to disguise his
back-door effort to obtain review of the District Court’s denial of
his downward-departure motion,” Gov’t Br. at 35-36, an order over
which this court has held we have no jurisdiction. See United
States v. Cooper, 437 F.3d at 332-33. We have taken jurisdiction
in light of the reservation in the plea agreement.
7
