Filed: Jan. 17, 2013
Latest Update: Feb. 12, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 11-4176 _ UNITED STATES OF AMERICA v. TARIK DEPASS, a/k/a RIK Tarik DePass, Appellant _ Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal Action No. 2-09-cr-00686-001) District Judge: Honorable Joel H. Slomsky _ Submitted Under Third Circuit LAR 34.1(a) January 10, 2013 Before: SCIRICA, AMBRO, and FUENTES, Circuit Judges (Opinion filed: January 17, 2013) _ OPINION OF THE
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 11-4176 _ UNITED STATES OF AMERICA v. TARIK DEPASS, a/k/a RIK Tarik DePass, Appellant _ Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal Action No. 2-09-cr-00686-001) District Judge: Honorable Joel H. Slomsky _ Submitted Under Third Circuit LAR 34.1(a) January 10, 2013 Before: SCIRICA, AMBRO, and FUENTES, Circuit Judges (Opinion filed: January 17, 2013) _ OPINION OF THE ..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 11-4176
________________
UNITED STATES OF AMERICA
v.
TARIK DEPASS,
a/k/a RIK
Tarik DePass,
Appellant
________________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 2-09-cr-00686-001)
District Judge: Honorable Joel H. Slomsky
________________
Submitted Under Third Circuit LAR 34.1(a)
January 10, 2013
Before: SCIRICA, AMBRO, and FUENTES, Circuit Judges
(Opinion filed: January 17, 2013)
________________
OPINION OF THE COURT
________________
FUENTES, Circuit Judge:
Defendant/Appellant Tarik Depass was convicted by a jury in the United States
District Court for the Eastern District of Pennsylvania of one count of robbery of a postal
employee in violation of 18 U.S.C. § 2114(a). The District Court sentenced Depass to a
term of forty-one months‟ imprisonment. On appeal, Depass argues that the evidence
presented at his trial was insufficient to sustain his conviction, and also that his sentence
was subjectively unreasonable. For the reasons that follow, we will affirm the conviction
and sentence.
I.
Because we write solely for the parties, we recite only those facts essential to our
decision. At trial, United States postal service worker Elsa Ortiz testified that, on
September 14, 2009, she attempted to deliver a large package addressed to Jalen Wilson
at 463 E. Cheltenham Ave. in Philadelphia. When she arrived at that address, Ortiz
encountered Depass, who claimed to be Jalen Wilson. When Ortiz requested
identification, Depass provided a driver‟s license bearing a different name and address.
As a result, Ortiz refused to give the package to Depass, and drove to a location a few
blocks away. Later that day as Ortiz was standing outside of her vehicle, Depass
approached, pushed her from behind, entered the back of the vehicle, and grabbed the
package. Depass then exited the vehicle and got into a waiting car, which drove away.
On August 5, 2011 a jury convicted Depass of one count of robbery of a postal
employee in violation of 18 U.S.C. § 2114(a). The District Court deferred sentencing
pending the preparation of a Presentence Report (“PSR”), which was issued in October
2011. The Sentencing Guidelines assign a base offense level of 20 to the crime of
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robbery of a postal employee and provide a list of enumerated enhancements based upon
specific offense characteristics. See U.S.S.G. § 2B3.1. The PSR applied a two-level
enhancement pursuant to U.S.S.G. § 2B3.1(b)(1) because the property of the United
States post office was the object of the offense and a postal service employee was a
victim. The PSR indicated Depass‟s total offense level was 22. Based on his one
criminal history point,1 the PSR designated Depass as having a criminal history category
of I. Accordingly, his Guidelines range was 41-51 months‟ imprisonment. No factors
under 18 U.S.C. § 3553(a) were identified as warranting a sentence outside the advisory
Guidelines range. On November 15, 2011, the District Court sentenced Depass to a term
of 41 months‟ imprisonment and three years of supervised release. This timely appeal
followed.2
II.
On appeal, Depass argues that the evidence presented at his trial was insufficient
to sustain his conviction, and also that his sentence was subjectively unreasonable.
A.
Depass argues that there was insufficient evidence presented at trial to convict him
of robbery, as his physical interaction with Ortiz amounted to nothing more than
1
The point was based on a single 2008 conviction for possessing a controlled substance.
2
The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction over the final judgment of conviction and sentence pursuant to 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a).
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“incidental touching.”3 Appellant‟s Br. at 13. Title 18 U.S.C. § 2114(a) makes it a crime
to:
assault[] any person having lawful charge, control, or custody of any mail
matter or of any money or other property of the United States, with intent to
rob, steal, or purloin such mail matter, money, or other property of the
United States, or rob[] or attempt[] to rob any such person of mail matter,
or of any money, or other property of the United States . . . .
Robbery is not defined in § 2114(a), and thus courts have given the word its common law
meaning, that is, “the taking . . . of property from the person of another against his will by
violence or putting him in fear.” United States v. Rodriguez, 925 F.2d 1049, 1052 (7th
Cir. 1991) (quoting Costner v. United States,
139 F.2d 429, 431 (4th Cir. 1943)).
Whether a robbery occurred is generally a question of fact to be resolved by the jury, not
a question of law to be resolved in the first instance by the reviewing court.
Id. at 1052
n.3. Given that Depass admits that he pushed Ortiz in an effort to retrieve the package,
there was sufficient evidence for a rational trier of fact to conclude that a robbery did
occur under § 2114(a).
B.
Our review of the reasonableness of the District Court‟s § 3553(a) analysis is two-
fold. First, we “determine whether the trial 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. Then, we ascertain whether those factors were
3
Because Depass did not move for a judgment of acquittal in the district court based on
sufficiency of the evidence, his claim is reviewed for plain error. United States v.
Gordon, 290 F.3d 539, 547 (3d Cir. 2002).
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reasonably applied to the circumstances of the case.” United States v. Lopez, 650 F.3d
952, 963–64 (3d Cir. 2011) (internal quotation marks and citations omitted).
Depass claims that the District Court‟s application of § 3553(a) was unreasonable
because it failed to consider relevant evidence of the nature and circumstances of the
offense, as well as his personal and criminal history, which was sufficient to warrant a
sentence outside the applicable Guidelines range. Our review of the record, however,
indicates that the District Court indeed considered this evidence. While giving due
consideration to the particular nature and circumstances of the offense, as well as the
history and characteristics of the defendant, the District Court also considered the
countervailing § 3553(a) consideration of the need for the sentence imposed.
Particularly, the Court expressed concern with the potential for injury caused by Depass‟s
actions, as well as the fact that it “was an unprovoked robbery of someone who . . . was a
representative of the United States who was just doing their job.” Supplemental
Appendix 157. Furthermore, the District Court considered Depass‟s dearth of prior work
history and apparent lack of motivation. This analysis is sufficient to show that the
District Court “adequately demonstrate[d] its exercise of „independent judgment‟ and
meaningful consideration of the relevant sentencing factors.” United States v. Merced,
603 F.3d 203, 215 (3d Cir. 2010) (quoting United States v. Sevilla,
541 F.2d 226, 232 (3d
Cir. 2008)).
Based on its assessment of the above factors, the District Court concluded that a
sentence at the low end of the Guidelines range was reasonable. In so doing, the Court
explicitly stated that it found this sentence necessary to reflect the seriousness of the
5
offense, and the need to protect postal service employees from danger. We are satisfied
that this explanation met the Court‟s “obligation to provide sufficient justifications on the
record to support the sentencing conclusion.” United States v. Levinson, 543 F.3d 190,
196 (3d Cir. 2008) (citing Gall v. United States,
552 U.S. 38, 50 (2007)). Though the
sentence imposed on Depass is admittedly lengthy given his minimal criminal history, it
was at the bottom of the Guidelines range, and was not substantively unreasonable.
III.
In sum, we conclude that the evidence presented at trial was sufficient to sustain
Depass‟s conviction for robbery of a postal employee in violation of 18 U.S.C. § 2114(a).
In addition, we conclude that the District Court gave adequate consideration to the
§ 3553(a) factors and that the 41-month sentence it imposed on Depass was substantively
reasonable. Accordingly, we will affirm the conviction and sentence.
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