Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-23-2009

USA v. Tyreke Spencer
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1873




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Recommended Citation
"USA v. Tyreke Spencer" (2009). 2009 Decisions. Paper 1486.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1486


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                                                       NOT PRECEDENTIAL


UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                            No. 08-1873




                 UNITED STATES OF AMERICA

                                  v.

                        TYREKE SPENCER,
                                   Appellant


           On Appeal from the United States District Court
                      for the District of Delaware
                     (D.C. No. 1-07-cr-00116-001)
            District Judge: Honorable Joseph J. Farnan, Jr.




             Submitted Under Third Circuit LAR 34.1(a)
                          April 21, 2009

Before: SCIRICA, Chief Judge, SLOVITER, and FISHER, Circuit Judges

                       (Filed: April 23, 2009)
                               _____

                             OPINION
SLOVITER, Circuit Judge.

       Tyreke Spencer appeals the sentence imposed on him following his guilty plea to

violation of 18 U.S.C. § 922(g)(1) (felon in possession of a firearm). He argues that his

sentence should be vacated and his case remanded because the District Court failed to

rule on his request for a variance.

                                             I.

       The Guidelines range for Spencer’s offense was 57 to 71 months. On multiple

occasions in Defendant’s Sentencing Memorandum and at the March 7, 2008, sentencing

hearing, Spencer’s attorney requested that Spencer be sentenced at the bottom of or

slightly below the Guidelines range.

       The attorney based his request on Spencer’s educational achievements, particularly

his graduation from high school, acceptance into college, and securing of a job. Spencer

also spoke on his own behalf about his educational accomplishments. The Government,

in contrast, cited Spencer’s multiple previous gun and drug offenses, and it requested a

sentence “at the high end of the guideline range.” App. at 32.

       The District Court subsequently addressed Spencer and asked whether he

recognized that “both the Government and [your attorney] have said that you should be

sentenced with[in] the guideline range?” App. at 32. Spencer’s attorney did not correct

the record to reflect that Spencer had in fact requested a sentence at either the bottom of

the Guidelines range, or slightly below.



                                              2
       The District Court reviewed the § 3553(a) factors as they related to Spencer’s case,

including the seriousness of the offense, Spencer’s criminal history, and the need for

deterrence and rehabilitation, and imposed a sentence of 59 months, which was two

months above the Guidelines minimum. The Court specifically addressed Spencer’s

educational goals by stating, “I’m going to hopefully encourage you to . . . make an

opportunity out of this. Take advantage of the programs that are offered in the federal

institution. You can get educational programs.” App. at 32.1

                                             II.

       Admittedly, the District Court did not explicitly rule on Spencer’s request for a

variance. Spencer did not object or call that to the District Court’s attention. Spencer

relies on our recent decision in United States v. Sevilla, 

, 230 (3d Cir. 2008),

where we held that the district court’s failure to address the factual merits upon which the

defendant’s request for a variance was based should be reviewed for abuse of discretion

rather than plain error, notwithstanding the defendant’s failure to preserve the issue for

appeal. We stated that “‘[a]n objection to the reasonableness of the final sentence will be

preserved if, during sentencing proceedings, the defendant properly raised a meritorious

factual or legal issue relating to one or more of the factors enumerated in 18 U.S.C. §

3553(a).’” 

(quoting United States v. Grier, 

, 571 n.11 (3d Cir.



                    1
                    The District Court had jurisdiction pursuant to 18 U.S.C. §
            3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
            § 3742.

                                              3
2007) (en banc)).

       In this case, although the District Court failed to explicitly address Spencer’s

request for a variance, it did address the factual merits of Spencer’s request. Thus,

Sevilla’s limited holding is inapplicable, and we review the District Court’s sentencing

determination for plain error. See United States v. Watson, 

, 274 (3d Cir.

2007) (reasoning that appellant’s objection to his sentence should be reviewed for plain

error since it was not raised in the district court). To establish plain error, Spencer must

establish that: (1) the district court erred, (2) the error was plain, and (3) it affected

substantial rights. 

third prong of the plain error test, there was no plain error because the

outcome of the sentencing determination was not affected. Specifically, if the District

Court did not think Spencer’s arguments about his educational attainments warranted a

sentence at the very bottom of the Guidelines range, it is illogical to think that the Court

would have thought Spencer’s education justified varying his sentence below the

Guidelines range. Thus, to the extent the District Court erred, Spencer’s substantial rights

were not affected.

                                               III.

       For the above-stated reasons, we will affirm the District Court’s judgment of

sentence.