U.S. v. Sevilla

• Decision Date: 04 September 2008
• Docket Number: No. 07-1105.,07-1105.
• Citation: 541 F.3d 226
• Parties: UNITED STATES of America v. Eduardo SEVILLA a/k/a Wilfredo Garcia a/k/a Mex a/k/a Mexico a/k/a Wilfredo Beltram Eduardo Sevilla, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

541 F.3d 226

UNITED STATES of America v. Eduardo SEVILLA a/k/a Wilfredo Garcia a/k/a Mex a/k/a Mexico a/k/a Wilfredo Beltram Eduardo Sevilla, Appellant.

No. 07-1105.

United States Court of Appeals, Third Circuit.

Argued February 5, 2008.

Opinion filed: September 4, 2008.

James V. Wade, Federal Public Defender, Fredrick W. Ulrich (Argued), Assistant Federal Public Defender, Office of the Federal Public Defender, Harrisburg, PA, for Appellant.

Thomas A. Marino, United States Attorney, Eric Pfisterer, Assistant United States Attorney, Theodore B. Smith (Argued), Assistant United States Attorney, United States Attorney's Office, Middle District of Pennsylvania, Harrisburg, PA, for Appellee.

Before: McKEE and AMBRO, Circuit Judges, and IRENAS,^* District Judge.

OPINION OF THE COURT

AMBRO, Circuit Judge.

Where, as here, a convicted criminal defendant presents to the District Court a colorable argument for a lower sentence under 18 U.S.C. § 3553(a), and the District Court fails to address that argument, must the defendant then object in order to preserve the argument for appeal? We conclude that, under our precedent, he need not. Accordingly, we review the District Court's omissions in this case not for plain error, but to determine whether the Court properly exercised its discretion by giving meaningful consideration to the relevant factors.

Applying this standard, we find insufficient evidence for us to discern whether the District Court meaningfully considered two of Appellant Eduardo Sevilla's arguments for a lower sentence. We thus vacate Sevilla's sentence and remand for resentencing.

I. Background

Sevilla pled guilty to conspiracy to distribute, and to possess with intent to distribute, cocaine base. At sentencing the Government contended that although Sevilla initially obstructed justice after his arrest, he subsequently provided substantial assistance to the Government, making inappropriate an increase in the offense level under U.S.S.G. § 3C1.1 for obstruction. The Government also moved for a downward departure under U.S.S.G. § 5K1.1 based on Sevilla's assistance.

Both in his sentencing memorandum and at the sentencing hearing, Sevilla raised several grounds for a lower sentence under 18 U.S.C. § 3553(a).¹ For instance, as to his "history and characteristics," § 3553(a)(1), Sevilla pointed to his difficult childhood. Sentencing Memorandum on Behalf of Defendant at 4-5, United States v. Sevilla, No. 1:05-CR-00363 (M.D.Pa. Nov. 22, 2006). He further argued that the federal Sentencing Guidelines' disparate treatment of crack and powder cocaine created a base offense level that did not accurately reflect his culpability. Id. at 7-10.

The District Court agreed not to increase the offense level for obstruction. It also decreased the offense level due to acceptance of responsibility and granted the Government's motion for a downward departure for substantial assistance, though the Court noted it was reluctant to do so given Sevilla's initially obstructive behavior. The final advisory Guidelines range was 70 to 87 months, and the District Court sentenced Sevilla to 72 months' imprisonment.

The District Court did not address, however, Sevilla's arguments relating to his childhood or the crack/powder cocaine disparity. See App. 81-85. Rather, the Court stated:

So having considered all of the [§] 3553(a) factors and the treatment of the co-defendants in the case, I'm going to accept the Government's recommendation and sentence the defendant, assuming a criminal history category three and a guideline range based on the downward departure motion of 70 months to 87 months, I'm going to sentence him to 72 months.

App. 82. Sevilla appeals his sentence to challenge these omissions.²

II. Standard of Review

We review the District Court's sentence for abuse of discretion. Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). In this regard, "our role is two-fold." United States v. Wise, 515 F.3d 207, 217 (3d Cir. 2008). We must "first ensure that the district court committed no significant procedural error"—for instance, by "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range." Gall, 128 S.Ct. at 597; Wise, 515 F.3d at 217. Second, "[i]f we determine that the district court has committed no significant procedural error, we then review the substantive reasonableness of the sentence under an abuse-of-discretion standard, regardless of whether it falls within the Guidelines range." Wise, 515 F.3d at 218; see also Gall, 128 S.Ct. at 597. Because we perceive a procedural error that requires resentencing in this case, we do not address the issue of substantive reasonableness.

Our Court's decision in United States v. Gunter requires district courts to follow a three-step sentencing procedure:

(1) Courts must continue to calculate a defendant's Guidelines sentence precisely as they would have before [United State v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)].

(2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit's pre-Booker case law, which continues to have advisory force.

(3) Finally, they are required to exercise their discretion by considering the relevant § 3553(a) factors in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines.

462 F.3d 237, 247 (3d Cir.2006) (internal citations, quotation marks, and brackets omitted). As noted above, it is undisputed here that the District Court complied with steps one and two: it calculated the Guidelines range and formally ruled on the Government's motion for a downward departure under U.S.S.G. § 5K1.1. The parties disagree, however, whether the District Court complied with step three in light of its failure to address some of Sevilla's arguments for a lower sentence.

A. We Review for Meaningful Consideration, Not Plain Error

The Government argues that, because Sevilla failed to object to the District Court's omissions at close of sentencing, we must review those omissions for plain error. See Government's Br. 2-3.³ We disagree. Our Court's en banc decision in United States v. Grier precludes this argument. See 475 F.3d 556 (2007) (en banc). There, the defendant failed to object at sentencing after the District Court's conclusory explanation that it "believes that 100 months is reasonable in view of the considerations of [18 U.S.C. § ] 3553(a)." Id. at 561 (alteration in original). We nonetheless reviewed, and not for plain error, the District Judge's conclusory explanation to determine whether she gave meaningful consideration to the relevant factors, because "[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)." Id. at 571 & n. 11. We ultimately concluded the Court's explanation was insufficient, as it was "devoid of substantive content and offer[ed] little assistance to an appellate tribunal." Id. at 571. Accordingly, we remanded the case for resentencing. Id. at 572.

We are mindful of cases in our Court that arguably suggest that plain error review applies where a defendant fails to object to a district court's explanation of its sentence. See, e.g., United States v. Dragon, 471 F.3d 501, 505 (3d Cir.2006) ("[The defendant] claims his sentence is unreasonable under Booker because the District Court failed to adequately consider the parsimony provision of 3553(a), which directs the court to `impose a sentence sufficient, but not greater than necessary[,]' to comply with the purposes specified in the statute. Because [the defendant] did not raise this objection at the sentencing hearing, we review his claim for plain error."); Lloyd, 469 F.3d at 325-26 (stating that defendant "did not advance" in the district court his contention that the district court was obligated to state its reasoning under § 3553(c)(1), and concluding that the district court's explanation "could not rise to the level of plain error or, indeed, any error at all"); United States v. Parker, 462 F.3d 273, 278-79 (3d Cir.2006) (stating that, because the defendant did not object before the district court to its explanation of the sentence under § 3553(c), the court of appeals would "review this claim for plain error," and concluding that the district court "did not plainly err" in commenting on the § 3553(a) factors).

Even assuming those decisions conflict with our later decision in Grier, however, we must follow Grier. As an en banc opinion, Grier is intervening and controlling authority. See Reich v. D.M. Sabia Co., 90 F.3d 854, 858 (3d Cir.1996) ("Although a panel of this court is bound by, and lacks authority to overrule, a [precedential] decision of a prior panel, a panel may reevaluate a precedent in light of intervening authority and amendments to statutes or regulations." (citation omitted)).

Here, Sevilla squarely raised his difficult childhood and the crack/powder disparity, both in his sentencing memorandum and at his sentencing hearing. Under Grier, then, the District Court's failure to address those issues did not require Sevilla to re-raise them to avert plain error review of these omissions.

B. Meaningful Consideration Review

"To determine if the [district] court acted reasonably in imposing the resulting sentence, we must first be satisfied the court exercised its discretion by considering the relevant factors." United States v....