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


7-28-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1761




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"USA v. McIntyre" (2006). 2006 Decisions. Paper 681.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/681


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                                                   NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                     __________

                         No. 05-1761
                         __________


              UNITED STATES OF AMERICA

                               v.

                    ALEXIS MCINTYRE,

                               Appellant

                         __________

        On Appeal from the United States District Court
           for the Western District of Pennsylvania
               (D.C. Criminal No. 04-cr-00050-1)
        District Judge: Honorable Terrence F. McVerry
                         __________

          Submitted Under Third Circuit LAR 34.1(a)
                      on May 16, 2006

Before: RENDELL, VAN ANTWERPEN and WEIS, Circuit Judges.

                    (Filed: July 28, 2006)

                         __________

                 OPINION OF THE COURT
                       __________
RENDELL, Circuit Judge.

       Alexis McIntyre was convicted of conspiracy and bank robbery in violation of

18 U.S.C. § 371 and 18 U.S.C. § 2113(a) respectively. The District Court sentenced him

to 60 months imprisonment, based on an advisory United States Sentencing Guidelines

range as well as the other 18 U.S.C. § 3553(a) factors to be considered in light of United

States v. Booker, 

(2005). The sentence imposed by the District Court lies

within the guidelines range and McIntyre does not argue that the range was calculated

incorrectly. On appeal, McIntyre seeks remand for resentencing because the sentence

imposed was unreasonable due to the District Court’s inadequate consideration of the

other 18 U.S.C. § 3553(a) factors, notably, "the nature and circumstances of the offense

and the history and characteristics of the defendant." 18 U.S.C. § 3553(a)(1).1 For the

reasons that follow, we will affirm.



                                             I

       On July 14, 2004, McIntyre pled guilty to the crimes of conspiracy and bank

robbery. McIntyre testified that he robbed more than $70,000 from a Citizens Bank in

Braddock, Pennsylvania, and that he conspired with Ms. Juantesha Purdie, a co-defendant



  1
    We have jurisdiction pursuant to 18 U.S.C. § 3742(a)(1). See United States v. Cooper,

(3d Cir. 2006). In Cooper, we held that an appellate court has jurisdiction
to review the unreasonableness of a sentence, "whether within or outside the advisory
guidelines range" pursuant to 18 U.S.C. § 3742(a)(1). 

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and teller at the bank. On January 12, 2005, after McIntyre’s guilty plea but before

sentencing, the Supreme Court issued its decision in Booker. The District Court

conducted two sentencing hearings on February 10 and February 25, 2005, to address

factual issues in the case that related to applying the now advisory guidelines. At the

February 10th hearing, McIntyre testified on his own behalf. Prior to the second hearing,

McIntyre filed two supplemental sentencing memoranda in light of Booker, providing the

court with supplemental materials including educational certificates and character

references for its consideration. At the second hearing, the District Court determined that

the advisory United States Sentencing Guidelines provided for a range of 57 to 71 months

imprisonment. The Court imposed a sentence of 60 months imprisonment for the

Conspiracy count and 63 months imprisonment for the bank robbery count, to be served

concurrently. The District Court also ordered restitution in the amount of $70,580 to be

paid by McIntyre and his co-defendant, Ms. Purdie.

       At sentencing, the District Court Judge noted several concerns he had regarding

factual issues surrounding the offenses. The primary dispute was whether McIntyre had

acted as if he were concealing a weapon when he robbed the bank because the guidelines

allow for a three level enhancement if a dangerous weapon was brandished or possessed

(U.S.S.G. § 2B3.1(b)(2)(E)). The District Court Judge told McIntyre at his final hearing

that he did not believe his testimony that he kept his hands on the counter at all times, and

did not cover his pocket as Mr. Massie testified. (However, the Judge ruled that the

government failed to prove that McIntyre had brandished or possessed a weapon beyond

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a reasonable doubt, and, therefore, the enhancement would not apply.) The District Court

Judge also found other aspects of McIntyre’s testimony about his actions on the morning

of the crime to not be credible.

                                             II

       McIntyre argues that the sentence imposed by the District Court was unreasonable.

He argues that the District Court gave "undue deference" to the advisory sentencing

guidelines and, consequently, did not adequately consider the other 18 U.S.C. § 3553(a)

factors, most notably, "the nature and circumstances of the offense and the history and

characteristics of the defendant." 18 U.S.C. § 3553(a)(1).

       For a sentence to be reasonable under Booker, “[t]he record must demonstrate the

trial court gave meaningful consideration to the § 3553(a) factors,” which include the

range suggested by the sentencing guidelines. United States v. Cooper, 

,

329 (3d Cir. 2006); 18 U.S.C. § 3742(a)(4). Neither party disputes that, here, the District

Court correctly calculated the sentencing guidelines range. We then consider whether the

District Court gave “meaningful consideration” to the § 3553(a) factors and to “any

sentencing grounds properly raised by the parties which have recognized legal merit and

factual support in the record.” 

332 (internal citations omitted). However,

“there are no magic words that the district judge must invoke when sentencing,” and the

District Court need not mechanically state by rote that it has considered each of the

factors when issuing a sentence. 

Finally, we consider whether the District

Court “reasonably applied [the § 3553(a) factors] to the circumstances of the case.” 

330. We apply a “deferential standard” in reviewing the District Court’s application of

the § 3553(a) factors and must affirm where the District Court issued a sentence “for

reasons that are logical and consistent with the factors set forth in section 3553(a).” 

The party that challenges the sentence has the burden of proving that it is

unreasonable. 

       The District Court considered and reasonably applied each of the § 3553(a) factors

in imposing McIntyre’s sentence. While McIntyre claims that the District Court did not

adequately consider the "the nature and circumstances of the offense and the history and

characteristics of the defendant," [18 U.S.C. § 3553(a)(1)], the record reflects otherwise.

The District Judge stated, “I have also considered the history and characteristics of the

defendant,” and reviewed the supplemental materials submitted in support of McIntyre,

including educational certificates and character references. The District Court also

informed McIntyre that, “I have had my secretary prepare a chart with names, and

relationship, and dates, of all persons who wrote to me on your behalf...[e]ach of which I

have read.” Appellant’s App. at 204-05. The District Court took into account McIntyre’s

physical condition, his mental and emotional health, his personal and family data, his

substance abuse history, his educational and vocational training, as well as his

employment record.

       Prior to concluding the final sentencing hearing, the District Court stated the

following:



                                              5
             The sentence is based on the need to reflect the seriousness of
             the offense, to promote respect for the law, to provide just
             punishment for the offense, to afford adequate deterrence to
             criminal conduct, to protect the public from further crimes by
             you, to provide the defendant with needed educational or
             vocational training, of which I hope you avail yourself,
             medical care or other correctional training in the most
             effective manner, and the need to provide restitution to the
             victim of the offense.


Appellant’s App. at 232-233.

      We commend the District Court on its thorough review of all the necessary factors

and conclude that the sentence it imposed was reasonable.

      For the foregoing reasons, we will AFFIRM the judgment of the District Court.

_________________________




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