Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-20-2002

USA v. Fleming
Precedential or Non-Precedential:

Docket 1-2153




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Recommended Citation
"USA v. Fleming" (2002). 2002 Decisions. Paper 138.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/138


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                                     NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT

                          No:   01-2153

                    UNITED STATES OF AMERICA


                                v.

                         JOHN FLEMING,

                                Appellant


        On Appeal From the United States District Court
            for the Eastern District of Pennsylvania
                 D.C. Criminal No. 99-cr-00593
             District Judge: Hon. J. Curtis Joyner

        Submitted Pursuant to Third Circuit LAR 34.1(a)
                        February 5, 2002

         Before: BECKER, McKEE & BARRY, Circuit Judges

                       MEMORANDUM OPINION
                  ( Filed: February 20, 2002)

McKEE, Circuit Judge.
     John Fleming appeals the sentence imposed after he pled guilty to
violations of 18
U.S.C.    2252(a)(2), and (a)(4). He argues that the district court erred
in failing to credit
him with a three point reduction in sentence pursuant to U.S.S.G.
3E1.1(a) and U.S.S.G.
  3E1.1(b)(2). For the reasons that follow, we will affirm.
     Inasmuch as we write only for the parties, we need not set forth the
facts and
circumstances underlying this appeal except insofar as it is helpful to
our brief discussion.
The defendant asserts that the district court erred in considering conduct
that he engaged
in after entering a plea. He stresses that the conduct may have been
distasteful, vulgar,
and even reprehensible, but that it was not unlawful. He argues that the
"government's
suggestion that the Appellant should lose acceptance points because a
third party mailed
Appellant 'objectionable material' flies in the fact of common sense."
[sic] Appellant's
Br. at 14. The defendant concedes that a court may rely upon post-
indictment unlawful
conduct in determining whether to grant   3E1.1 reduction for acceptance
of
responsibility, quoting 

, but argues that the
district court erred in
relying upon lawful conduct to deny a reduction in sentence. We disagree.
     A district court has substantial discretion in determining whether or
not a
downward departure is appropriate under the sentencing guidelines. Koon
v. United
States, 

(1996). Under    3E1.1(a) a defendant is entitled to a
reduction in
sentence if he or she "clearly demonstrates acceptance of responsibility.
. . ." Despite
defendant's protestation to the contrary, the issue here is not the
legality of the
defendant's behavior, but the significance of that behavior insofar as it
reflected upon his
purported remorse and "acceptance of responsibility" for his offense. We
need not
comment on the defendant's argument that he ought not to be punished for
materials
which he received from third parties because the district court's sentence
is more than
justified by the content of materials which the defendant himself sent to
others.
     The evidence that the government introduced at sentencing included
numerous
letters which evidenced a total absence of remorse and no acceptance of
responsibility
whatsoever beyond the simple fact of the plea agreement itself. However,
"entry of a
guilty plea does not entitle a defendant to a   3E1.1 reduction as 'a
matter of right.'"
U.S.S.G.   3E1.1, Application Note 3. The sentencing court correctly
determined that
defendant's letters painted a much clearer picture of his remorse and
acceptance of
responsibility than his guilty plea. In one such letter, dated November
8, 2000, the
defendant expressed his gratitude for materials containing the kind of
references to
children that had led to his prosecution in the first place. He also
spoke of how he missed
the "good old days," of having sex with children. App. 106-107a. Indeed,
given the
quality and quantity of the proof which the government introduced in
opposition to a
downward departure, defendant's argument on appeal is specious at best.
     The defendant has also filed a pro se brief in which he raises
several arguments in
addition to the argument raised by counsel. However, "[e]xcept in cases
in which
counsel has filed a motion to withdraw under Anders v. California, 

(1967),
parties represented by counsel may not file a brief pro se." 3rd Cir.
LAR 31.3 (2002).
Accordingly, we would usually ignore the numerous assertions raised only
in Fleming's
pro se brief. See United States v. Essig, 

, 973 (3d Cir.
1993). Here, however,
we will depart from that practice because the government concedes that one
of the
arguments raised in the pro se brief warrants remand for resentencing.
Accordingly, we
will briefly address that argument.
     In "Argument Four" of his brief, the defendant appears to argue that
the district
court erred in imposing a sentence of 86 months under Count II (charging
possession of
child pornography in violation of 18 U.S.C.   2252(a)(4)) because the
maximum is only
five years. The government interprets this argument the same way we do,
and agrees that
the district court erred. The government asserts that, inasmuch as the
defendant also
received a concurrent sentence of 86 months on Count I of the indictment
for violating 18
U.S.C.   2252(a)(2) (receiving child pornography), we should remand to
allow the court
to correct the sentence on Count II. The defendant and the government are
both wrong,
and remand is not necessary.
     Prior to October 30, 1998,   2252(b)(2) provided that a person who
violated
2252(a)(4) and had a prior conviction "relating to the possession of child
pornography,"
could receive an enhanced sentence of "not less than 2 years nor more than
10 years." 18
U.S.C.   2252(b)(2). In 1985, Fleming confessed to sodomizing a 10 year
old boy and
pled guilty to "Sodomy in the First Degree," in state court in Delaware.
However, that
conviction would not have justified an enhancement to his current sentence
because it
was obviously not a conviction "relating to the possession of child
pornography."
However, that enhancement was amended as of October 30, 1998. The amended
provision allows for a maximum sentence of 10 years under   2252(a)(4)
when a
defendant has a prior conviction "relating to . . . abusive sexual conduct
involving a minor
. . . ." Fleming was arrested on February 5, 1999, after that amendment
became effective.
He is therefore subject to 10 year maximum sentence, and the district
court properly
imposed a sentence that did not exceed that statutory maximum.
     Accordingly, we will affirm the judgment of sentence imposed by the
district
court.
TO THE CLERK:
     Please file the forgoing opinion.
                              By the court,

                                 /s/ Theodore A. McKee
                                  Circuit Judge