U.S. v. Lloyd

Decision Date28 November 2006
Docket NumberNo. 05-4241.,05-4241.
Citation469 F.3d 319
PartiesUNITED STATES of America v. Eric LLOYD a/k/a Calvin Larue a/k/a Butter Eric Floyd, Appellant.
CourtU.S. Court of Appeals — Third Circuit

Peter Goldberger, Ardmore, PA, Attorney for Appellant.

Colm F. Connolly, United States Attorney Richard G. Andrews, First Assistant U.S. Attorney, Wilmington, DE, Attorneys for Appellee.

Before SLOVITER, CHAGARES, and GREENBERG, Circuit Judges.

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before the court on Eric Lloyd's appeal from a judgment of conviction and sentence entered August 23, 2005, based on his plea of guilty to a count in a superseding indictment charging him with conspiracy to possess with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. § 846. The appeal raises issues limited to his resentencing after our remand for that purpose in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), pursuant to which the sentencing guidelines now are advisory. The district court prior to Booker sentenced Lloyd at the bottom of the applicable sentencing guideline range of 168 to 210 months to a 168-month custodial term to be followed by a 5-year term of supervised release. After our remand following Booker, the district court, which did not change its calculation of the sentencing range, again sentenced Lloyd to an 168-month custodial term to be followed by a 5-year term of supervised release.

The district court had jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). See United States v. Giaquinto, 441 F.3d 195, 197 (3d Cir.2006); United States v. Cooper, 437 F.3d 324, 327-28 (3d Cir.2006). In adjudicating this appeal we recognize that, in general, a court of appeals gives deference to a district court's sentencing determinations and thus reviews sentences on an abuse of discretion basis. Id. at 330-32. But to the extent that this appeal involves contentions that the district court made mistakes of law, our review is plenary. See Gibbs v. Cross, 160 F.3d 962, 964 (3d Cir.1998). Nevertheless, insofar as Lloyd is advancing contentions that he did not preserve in the district court, our review is confined by the exacting plain error standards. See United States v. Merlino, 349 F.3d 144, 161 (3d Cir.2003).

Lloyd advances three contentions on this appeal. First, he contends that the district court erred as he regards it as having established a presumptively correct range of reasonable sentences based on the sentencing guidelines rather than having treated the guidelines as being only one of several factors under 18 U.S.C. § 3553(a) for a court to consider before imposing sentence. Second, he contends that the court failed to offer a meaningful rationale for concluding that a sentence within the now advisory guidelines was the least sufficient sentence to achieve the purposes of punishment. Third, he contends that it was not reasonable for the court to determine that the sentence it imposed, though within the guidelines, was the least sentence sufficient to satisfy the purposes of punishment.

II. DISCUSSION
A. The district court did not place too much weight on the advisory sentencing guidelines.

Lloyd argues that the district court "imposed sentence under a fundamental misapprehension of the statutory framework which governs after [Booker]." Appellant's br. at 10. In this regard he contends that the court ignored Booker and instead "announced its own intention to follow the guidelines in all but unspecified exceptional cases." Id. at 12. He believes that the court was wrong as post-Booker "the guideline range is but one of numerous factors to be `considered,' and that the Act plainly states that the range is to be treated as inherently neither more or less significant than any other factor." Id. at 13.

In particular, he takes issue with the district court's following statements:

And if I were to say, as your attorney is encouraging me, `you know what, under [18 U.S.C. §] 3553, that feels too harsh to me, I'm just not going to pay any attention to that guideline range,' I would be ignoring what the elected representatives of the United States citizens have strongly encouraged and what I think to be wise and good public policy, which is a fair degree of predictability and consistency in sentencing across the country. . . . So I believe that guideline range is the thing that I should be looking to primarily.

Id. at 12;1 app. at 122.

After our review of the matter we are satisfied that Lloyd's select extraction from the district court's remarks does not reflect fairly on what the court said. Rather, read as a whole and in context, these statements take on a different meaning. Accordingly, we quote them at greater length:

I don't feel, as your attorney has said, shackled by the guidelines and I'm going to give you the sentence I gave you before because the guidelines I view as deserving great weight in my consideration.

. . . .

. . . I look to the direction of the Federal Sentencing Guidelines which do represent an effort by the United States Government to avoid sentencing disparity across the nation. . . . And if I were to say, as your attorney is encouraging me, `you know what, under [18 U.S.C. §] 3553, that feels too harsh to me, I'm just not going to pay any attention to that guideline range,' I would be ignoring what the elected representatives of the United States citizens have strongly encouraged and what I think to be wise and good public policy, which is a fair degree of predictability and consistency in sentencing across the country. So I don't view the guidelines as shackling me, I view them as allowing me to be fair and consistent with other judges who have the unhappy responsibility of sentencing.

So I believe that guideline range is the thing that I should be looking to primarily. I looked at the other factors under [section] 3553(a). I've examined them and think that they are not inconsistent with the sentence that you received. I won't go into things that we talked about at the first sentencing. Suffice it to say that your criminal history for [a] relatively young man is significant and clearly played a role here.

I reject the assertion that the sentence given to you is out of keeping with what the codefendants got. On the contrary, for each of your codefendants, as with you, I paid careful attention to what the criminal history and the offense level was and sentenced them as I thought appropriate in light of all the factors that were in play in each of their cases.

. . . .

The Court has considered the defendant's arguments regarding sentencing and has considered [the] United States Supreme Court's decision in Booker which ruled [the] sentencing guidelines are now advisory. The Court also believes the sentence which is within the advisory guidelines range . . . meets the sentencing goals outlined in Title 18, United States Code, Section 3553.

App. at 121-25.2

Whether we consider the district court's view of the role of the sentencing guidelines from a plenary approach or under an abuse of discretion standard, we cannot say that the court erred in applying Booker. In fact, the court's remarks are entirely consistent with our opinion in Cooper in which we discussed the function of the sentencing judge after Booker and, in particular, the role of the guidelines in relation to the other 18 U.S.C. § 3553(a) sentencing factors. In Cooper we held that the district court must give "meaningful consideration" to the section 3553(a) factors,3 but the court need not "discuss and make findings of each of the § 3553(a) factors if the record makes clear the court took the factors into account in sentencing." Id. at 329. As to the function of the guidelines, in Cooper we stated:

The advisory guidelines range is itself one of the § 3553(a) factors, 18 U.S.C. § 3553(a)(4), and continues to play an integral part in sentencing decisions. In Booker, the Court explicitly directed district courts to continue to `take account of the Guidelines together with other sentencing goals. The Guidelines remain an essential tool in creating a fair and uniform sentencing regime across the country,' and provide a natural starting point for the determination of the appropriate level of punishment for criminal conduct. The § 3553(a) factors were intended to guide the Sentencing Commission in its formulation of sentencing guidelines.

Id. at 331 (citations and footnotes omitted).

The district court's remarks at sentencing in this case were consistent with our holding in Cooper. In this case the court relied on the guidelines as "a natural starting point" and gave "meaningful consideration" to the other section 3553(a) factors. In particular, the court at the resentencing considered more factors than the guidelines in crafting Lloyd's sentence as it also took into account the other section 3553(a) considerations including his lengthy criminal history, the sentences of the other defendants, and the need to avoid sentencing disparities among defendants with similar records found guilty of similar misconduct. In this exercise, it did not abuse its discretion.

Lloyd also argues that the district court erred in failing to consider his post-sentence rehabilitation efforts. But his attorney in the district court did not object at sentencing to the court's approach with respect to his post-sentence rehabilitation efforts and, thus, we could grant relief by reason of the district court's treatment of those efforts only if we found plain error.

U.S.S.G. § 5K2.19 (Policy Statement) states, "Post-sentencing rehabilitative efforts, even if exceptional, undertaken by a defendant after imposition of a term of imprisonment for the instant offense are not an appropriate basis for a downward departure when resentencing the defendant for that...

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